REVISED MARCH 23, 2015

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 

Appellees, various prison officials. Toney contends that Appellees violated his 

right to procedural 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

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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 

commit aggravated assault with a deadly weapon.1 Toney was sentenced to 

forty years’ incarceration with the TDCJ.

A. The Relevant Policies

During Toney’s imprisonment, 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 

Recording Information.” The policy was created 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 classification 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 nonsexual 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 treatment is warranted.” On 

February 20, 2007, the TDCJ enacted another revised directive, AD 04.09 (rev. 

1 Toney alleges that 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.”

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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 

convicted of . . . a non-sexual offense 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 variety of activities. A parole panel may 

impose Special Condition X “upon a majority 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 

Sex 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 

within 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 

constitute 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 

offense convictions by changing the last clause from “indicates that the 

offender has engaged in unlawful sexual conduct and could constitute a threat 

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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 crossexamine witnesses prior to the imposition of Special 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 identified 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 accordance with [AD 04.09].” The Static 99 Assessment, which 

is “used for assessing 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 and 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 enacted two subsequent versions of Special Condition X, which 

contain no relevant changes.

3 These allegations appear in Toney’s verified 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-sexual assault conviction.

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poses a moderate danger to the community and may continue to engage in 

criminal sexual conduct.” 

The parole board denied Toney’s parole in 2004, providing 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 pattern 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 each 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 Toney’s trial 

transcript. Nonetheless, Toney was consistently informed by the TDCJ and 

TBPP that he was being identified as a sex offender, despite his challenges to 

that classification. He was also informed, however, that he would not be 

required to register as a sex offender.

In 2008, the TDCJ parole division provided Toney with a form entitled 

“Notice and Opportunity to Respond: Pre-Imposition of Sex Offender Special 

Conditions.” The form indicated that the parole division was “considering 

requesting the [TBPP] to impose Special Condition ‘X,’” given that Toney’s 

offense “allegedly involved attempting to sexually assault the female victim.” 

The notice informed Toney that he had the right to submit a statement and 

documentation on his behalf to challenge the imposition of the condition. 

Toney submitted several 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.

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“Offender Toney is identified as a sex offender due to” his conviction, “during 

which the subject attempted to sexually assault an adult female.”6 That year, 

Toney 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 offender 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 

approximately 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 psychological 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 offender 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 specific programs requiring assessment testing prior to 

enrollment . . . .

6 This conclusion was indicated on Toney’s TBPP case summaries until as late as 

August 23, 2012.

7 The printouts also contain the comment: “Burg[lary] is Sex Related.”

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The code “PR,” which indicates that “the offender has refused to participate in 

a non-voluntary program,” does not appear on Toney’s ITP printouts. The ITP 

manual notes that “offenders 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 

concluded that Toney should not have been identified 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 printout 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 participating in college trade classes. Toney was also 

deemed ineligible 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 . . . identified 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 operative 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). There 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 Toney wrote to the warden indicates that he sought the transfer 

to be closer to aging relatives.

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the Ellis Unit, where “they have Sex Offender Treatment Programs.”10 In 

general, Toney asserts that his sex offender status caused him “great stress, 

and mental anguish” and caused him to become “ill, with physical symptoms.”

C. Procedural History

Toney, proceeding pro se and in forma pauperis, brought this action

pursuant to 42 U.S.C. § 1983, alleging violations of the due process clause of 

the Fourteenth Amendment. Toney also alleges due process violations under 

the Texas Constitution, as well as a violation of the “Texas Sep[a]ration of 

Powers doctrine.” According to Toney, his rights were violated when Appellees 

categorized him 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 TDCJ; and (7) 

Stuart Jenkins, the director of the parole division 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 

officers: (1) Donniea Garrett; (2) Rueth Palad; and (3) Barbara Church. Toney 

seeks only declaratory and injunctive relief from those individuals.

Appellees and Toney filed cross-motions for summary judgment on all 

claims. Appellees asserted qualified 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 necessary because the unit at which Toney 

was previously housed, the Central Unit, was being closed. Toney responds that although 

over 900 offenders 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 treatment is held.”

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the magistrate judge, who issued a report and recommendation. The 

magistrate judge reasoned that neither the denials of Toney’s parole nor 

Toney’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 exercise supplemental 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 recommendation. 

The district court overruled the objections, adopted the report and

recommendation, and entered judgment dismissing all of Toney’s claims. 

Toney timely appeals.

II. Standard of Review

This court reviews de novo a district court’s order granting a defendant’s 

motion for summary judgment, applying the same standard 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 

judgment 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. Hixson 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 actions took place.”

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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. 

Fitzgerald, 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, 200 (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 property 

interests are at stake, the “threshold 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. at 481–82. Accordingly, although “[s]tates may 

under certain circumstances create 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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manner as to 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 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, the Supreme Court held that an inmate’s liberty interests 

were 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 Court 

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 choose 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 

(internal 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 “qualitatively 

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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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 Circuit cases have held that the 

imposition of sex offender 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 supervision, with conditions 

requiring that he (1) register 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 a 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 been 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 classification 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 provided for in Vitek.” Id. Although we

recognized that “many parolees are required to participate in some form of 

counseling or treatment as a condition on their release,” we found “that, due to 

its highly invasive nature, Texas’s sex offender therapy program is 

‘qualitatively different’ from other conditions 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 compelled treatment on which his parole was conditioned, and 

the state was required to provide procedural protections before imposing such 

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conditions.” Id. In denying rehearing en banc, Coleman v. Dretke, 409 F.3d 

665 (5th Cir. 2005) (Coleman II), this court clarified that even though it became 

clear 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 offender 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 

noted that “the state’s imposition of sex offender status and therapy 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 procedural due process 

claimants must establish stigma—in addition to qualitatively different 

conditions—to claim an unconstitutional infringement of a liberty interest, 

regardless of whether reputational harm is alleged.” Id. at 659 n.9. Although

“the parole 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.

This court revisited the issue of sex offender parole conditions in Meza v. 

Livingston, 607 F.3d 392 (5th Cir. 2010) (Meza I). The plaintiff, a parolee never 

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convicted of a sex offense, brought a Section 1983 action against TBPP and 

TDCJ employees for violations of his right to due 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 participate in sex offender therapy,” as well as a condition requiring 

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. at 401. We then held 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. at 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 eligibility 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.

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that the treatment program at issue was voluntary: “[B]ecause the State’s 

regulations render the inmate completely ineligible for parole if the treatment 

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 the 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 procedural 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 

Sexual 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. Analogizing 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 stigmatizing 

effect of being classified as a sex offender constitutes a deprivation of liberty 

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. 2000), 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 1239. The 

court reasoned that “although the [department of corrections] has not created 

a liberty interest in a prisoner’s not being classified a sex offender,” the removal 

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of his good time credits triggered such an interest. Id. at 1242. The court also 

noted that “it is the label replete with inchoate stigmatization—here based on 

bare allegations which are vigorously denied and 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 did 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 for 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, the 

court stated that the treatment program at issue, “which 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, changes the conditions of 

Renchenski’s sentence and, accordingly, constitutes a loss of liberty that 

exceeds his loss of freedom from confinement.” Id. The court therefore 

concluded “that 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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2. Toney’s Due Process Claim

We conclude that neither Toney’s classification as a sex offender, 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 

classification. See Meza 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 [Coleman] 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.” (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 whether reputational harm is alleged.” 

Jennings, 602 F.3d at 659 n.9 (emphasis added); see also Vitek, 445 U.S. at 494 

(“[T]he 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 for mental illness, 

constitute the kind of deprivations of liberty that requires 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 being 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 

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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 from 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.” (emphasis 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 interests under 

the due process clause, and we decline to so hold today. Such a classification, 

absent other consequences, does not constitute an “atypical and significant 

hardship on [Toney] in relation to the ordinary incidents of prison life.” 

Sandin, 515 U.S. at 484; see also Hernandez v. Velasquez, 522 F.3d 556, 562 

(5th Cir. 2008) (“[G]enerally speaking, a prisoner has no liberty interest in his 

custodial classification.”).

It is nonetheless clear from the cases discussed above that sex offender 

classification triggers a liberty interest when combined with mandatory sex 

offender treatment. Toney correctly 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 1239. 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); 

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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. First, 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 Special 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 Treatment 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 worksheet” was merely a “general risk 

assessment tool.” The evaluation—which was completed by a parole officer, 

not a psychiatrist or other mental 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 Toney 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 

program and should “Enroll Now,” the ITPs also indicated that Toney was 

“Pending Assignment” to the program—i.e., that “pre-entrance testing must be 

completed prior to enrollment.” 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 discretion to 

decide whether to impose the condition.

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and was therefore never mandated to complete the program. Although Toney 

has identified penalties that may result from his refusal to participate 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, 330 (noting 

Renchenski’s refusal to participate in therapy); Chambers, 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.”).

The other consequences Toney faced due to his sex offender classification

also fail to give rise to a liberty interest. First, Toney contends that his sex 

offender status resulted in the repeated denials of his parole. However, even 

assuming the parole board relied on this factor in deciding to deny his parole, 

we have consistently held that “Texas prisoners . . . cannot mount a challenge 

against any state parole review 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 liberty interest in obtaining parole in Texas, he cannot 

complain of the constitutionality of procedural devices attendant to parole 

decisions.”). 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 transfer to 

the Ellis unit, but, as discussed above, Toney has provided no evidence 

14 Indeed, there is a specific code—“PR”—indicating that “the offender has refused to 

participate in a non-voluntary program,” but that code never appeared on Toney’s ITP 

printouts.

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suggesting that he was required to undergo sex offender treatment upon his 

transfer to the Ellis unit. Moreover, an inmate generally “has no liberty 

interest in residence in one prison or another.” Jackson v. Cain, 864 F.2d 1235, 

1250 (5th Cir. 1989). Finally, Toney’s exclusion from substance abuse 

treatment and educational/vocational 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 treatment 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 incidents 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 recreation and 

commissary privileges . . . does not implicate a liberty interest because those 

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 

interests. 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 restraint 

which, while not exceeding the sentence in such an unexpected manner as to 

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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 prison 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 language 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. (internal 

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 contendere for” certain listed offenses. Tex. 

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 statute. 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. Crim. Proc. Code art. 

62.001(5). Again, Toney cannot show a violation of this 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 specifically informed that he would not have to register as a sex 

offender.

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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 subject 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 liberty interest argument, but he does not argue 

that Appellees’ violation of these policies implicated his liberty interests. 

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 purposes 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 statutes or regulations, his state-created liberty 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, because 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 unnecessary Toney’s motion for leave to file additional record 

excerpts, as the documents Toney seeks leave to file are already contained in the record.

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