1 United States Court of Appeals,

Fifth Circuit.

Nos. 95-50879, 96-50382.

Daniel JOHNSON, Individually and on Behalf of all Present and

Future Inmates of the Texas Department of Criminal Justice---

Institutional Division, Plaintiff-Appellee,

v.

Victor RODRIGUEZ, in his Official Capacity as Chairman, Texas

Board of Pardons and Paroles, all Present and Future Members of the

Texas Board of Pardons and Paroles, in their Official Capacities;

Allan B. Polunsky, in his Official Capacity as Chairman, Texas

Board of Criminal Justice, and all Present and Future Members of

the Texas Board of Criminal Justice in their Official Capacities,

Defendants-Appellants.

April 23, 1997.

Appeals from the United S tates District Court for the Western

District of Texas.

Before GARWOOD, DAVIS and STEWART, Circuit Judges.

GARWOOD, Circuit Judge:

In this class action by Texas prisoners,

defendants-appellants, the chairmen and members of the Texas Board

of Pardons and Paroles and of the Texas Board of Criminal Justice,

in their official capacities, appeal the judgment below declaring

certain aspects of the Texas parole scheme violative of prisoners'

federal constitutional rights of equal protection and access to the

courts. Also appealed is the subsequent award of attorneys' fees

to plaintiffs' counsel. We reverse the magistrate judge's findings

of constitutional violations, vacate the award of attorneys' fees,

and remand this case with instructions.

Facts and Proceedings Below

Daniel Johnson, an inmate of the Texas Department of Criminal1 Johnson's complaint also included claims that a Texas

sentencing statute is applied in an ex post facto manner, that

defendants failed to set a tentative parole month and propose a

program of measurable institutional progress for Texas inmates, and

that defendants discriminate against non-resident inmates by

considering the prior award of furloughs as a factor favoring

parole even though non-resident inmates are as a practical matter

unable to receive such furloughs. The first two of these claims

were dismissed at the summary judgment stage and the furlough claim

2 Justice—Institutional Division (TDCJ-ID), filed this lawsuit pro se

and in forma pauperis on February 26, 1985. His initial complaint,

thrice amended, was dismissed by the district court u pon the

recommendation of a magistrate judge for failure to state a claim

and to exhaust state remedies. This Court reversed and remanded,

observing that Johnson's allegations raised "suggestions of

invidious, group-based discrimination and infringement of

fundamental rights." J ohnson v. Pfeiffer, 821 F.2d 1120, 1122-1123

(5th Cir.1987) ( Johnson I ). After discussing the shortcomings of

his complaint, we ordered that on remand Johnson be allowed an

opportunity to amend to clarify the factual and legal basis of his

claims. I d. at 1123-1124. We expressly reserved opinion as to

whether he could even state a claim, much less prove one. Id. at

1123.

On remand, the district court appointe d counsel to assist

Johnson in preparing his Fourth Amended Complaint, which was filed

on September 7, 1988. This complaint asserted several purported

causes of action under 42 U.S.C. § 1983, alleging, inter alia, that

the defendants' consideration of "protest letters" and prisoners'

"writ-writing" activities in the parole process infringes a panoply

of federa l constitutional provisions. 1 All parties consented toafter trial; these dispositions have not been appealed and are now

final. The portion of the judgment below finding that the Texas

Board of Pardons and Paroles and the Texas Board of Criminal

Justice as corporate entities enjoy Eleventh Amendment immunity has

not been appealed and is also final.

2 The magistrate judge agreed to stay aspects of his ordered

relief pending appeal. This Court, after hearing oral argument,

entered an order stayi ng implementation of the remainder of the

ordered relief pending our disposition of the appeal.

3 The American Civil Liberties Union of Texas, National Rifle

Association, Texas Criminal Defense Lawyers Association, Texas

3 final adjudication by a magistrate judge, pursuant to 28 U.S.C. §

636(c).

On February 11, 1992, the magistrate judge, after finding that

Johnson adequately represented a class comprised of all present and

future inmates of the TDCJ-ID, certified this litigation as a class

action limited to prospective relief only. A bench trial was held

on June 9-12 and June 23-26, 1992, and July 16, 1992. On November

1, 1995, the magistrate judge issued a memorandum opinion granting

Johnson and the prisoner class prospective relief on the protest

l etter and writ-writing claims. On December 1, 1995, the

magistrate judge issued an amende d memorandum opinion clarifying

aspects of his prior opinion but ordering essentially the same

system-wide r elief. 2 J ohnson v. Texas Dept. of Criminal Justice,

910 F.Supp. 1208 (W.D.Tex.1995) ( Johnson II ). On April 30, 1996,

the magistrate judge issued another memorandum op inion and order

award ing the plaintiffs attorneys' fees in the amount of

$959,361.77, expenses and costs in the amount of $35,261. 86, and

post-judgment interest. Defendants timely appeal judgment on the

merits and the award of attorneys' fees. 3Council on Family Violence and Women's Advocacy Project, and a

coalition of victims' rights groups have submitted briefs to this

court as amici curiae.

4 Under Texas Revised Civil Statutes Annotated articl e 4413(401) as of January 1, 1990, the powers, duties, obligations,

property, and records of the Texas Board of Pardon and Paroles were

transferred to the Texas Board of Criminal Justice. J ohnson II,

910 F.Supp. at 1210 n. 2. As the magistrate judge noted, however,

this statute was repealed in 1991 and replaced by Texas Government

Code § 491.001, which designates the Board of Pardons and Paroles

as a separate entity exercising the powers granted by Code of

Criminal Procedure article 42.18. Id.

4 Discussion

I. The Texas Parole System---an Overview

The legislative parameters of the T exas parole system are

established in large measure by Texas Code of Criminal Procedure

article 42.18. Under this statute, the Board of Pardons and

Paroles (Board) is the exclusive authority for determining whether

qualified prisoners receive parole. 4 Tex.Code Crim. Pro. art.

42.18 §§ 1, 2(1), 8(a) and (g); C reel v. Keene, 928 F.2d 707 (5th

Cir.1991), cert. denied, 501 U.S. 1210, 111 S.Ct. 2809, 115 L.Ed.2d

982 (1991). S ee also Tex. Const. art. IV, § 11. Although the

statute does not fetter the Board's discretion to deny parole, it

does limit the situations in which parole is authorized to those

where the prisoner has secured outside placement and is "able and

willing to fulfill the obligations of a law-abiding citizen."

Tex.Code Crim. Pro. art. 42.18 § 8(f)(5). Furthermore, a parole

panel is empowered to grant parole "only for the best interest of

society, not as an award of clemency," and must determine prior to

paroling a prisoner that his release "will not increase the

likelihood of harm to the public." Id. at § 8(f)(5) and (a).5

The statute also states that the Board "shall develop and

implement parole guidelines" based on "the seriousness of the

offense and the likelihood of favorable parole outcome." I d. at §

8(f)(5). "If a member of the board deviates from the parole

guidelines in casting a vote on a parole decision, the member shall

produce a brief written statement," to be placed in the prisoner's

file, "describing the circumstances regarding the departure from

the guidelines." Id. The Texas scheme does not, however, require

that a parole panel state its reasons for denying parole, nor does

it create any constitutionally protected interest in a tentative

release date prior to the termination of the sentence imposed.

Gilbertson v. Texas Bd. of Pardons & Paroles, 993 F.2d 74 ( 5th

Cir.1993).

The Board generally executes its statutory mandate in

three-member panels. The particularities of the parole review

process are recited in the magistrate judge's opinion:

"Most inmates are reviewed for parole consideration by a

panel of three [members of the Board]. The first panel member

often (but not always) interviews t he inmate at the

institution and writes a summary of the in terview for

inclusion in the inmate's parole file. The first panel member

then "votes the case' by indicating on the docket sheet in the

file whether he or she favors release on parole. The second

panel member then receives the file and votes the case without

an interview. If the first two panel members disagree, the

file then goes to the third member for the dispositive vote.

If the first two panel members agree, the case does not go to

the third member.

If the panel votes against release on parole the inmate

receives a form notice from the Board listing reasons for the

unfavorable decision. If the panel votes in favor of release,

the inmate is notified of that fact and is told that the

decision is tentative and may be rescinded, depending upon the

Board's further investigation. The inmate receives a notice

known as an "F.I.' (further investigation).5 The magis trate judge noted the tension between the

requirement for an oral statement before the panel and the typical

panel's pra ctice of reviewing the prisoner's file and individual

member voting at separate junctures rather than at a single panel

sitting.

6

At a point in time roughly contemporaneous with the

panel's consideration of an inmate's case, the Board sends out

notification to the persons entitled to receive notice under

the statute." Johnson II, 910 F.Supp. at 1216.

Texas Code of Criminal Procedure article 42.18 § 8(f)(2)

mandates that the parole division of the TDCJ-ID notify the victim,

his or her legal guardian, or a close relative (if the victim is

deceased) when the prisoner incarcerated fo r the victimizing

offense is being c onsidered for parole. This provision

specifically allows the person notified to submit to the panel a

written statement. In addition, the person notified is entitled to

appear before the panel, either in person or through a

representative, and voice his or her views about the offense, the

prisoner, and the crime's effect on the victim. 5 Subsection

8(f)(2) also declares, however, that "[t]his subsection may not be

construed to limit the number of persons who may provide written

statements for or against the release of the prisoner on parole."

Finally, subs ection 8(f)(2) requires that in making individual

parole determinations a parole panel "consider" the "victim impact

statement," a document which is developed during the prisoner's

prosecution and details the effects of the crime on the victim.

See Tex.Code Crim. Proc. art. 56.03.

Generally, the parole panel's review is guided in large part

by the contents of the prisoner's parole file. Subsection 8(e) of6 Testimony adduced below indicates that the parole files of

some prisoners contain indications of prior litigation activity

undertaken by that prisoner. Our review of the record indicates

that such references are on the whole fairly generalized, e .g., typifying a prisoner as "litigious" or noting that the prisoner

spends time in the law library or is receiving paralegal

instruction.

7 article 42.18 directs that the prisoner's parole file include the

"victim impact statement" and " any written comments or information

provided by local trial officials or vic tims of the offense."

Thus, relevant correspondence, pro or con, from any and all

interested parties may be received and considered by a pa role

panel; correspondence from "local trial officials" and "victims"

must be included in the prisoner's parole file, while the "victim

impact statement" must be considered in making the ultimate parole

determination. Regardless of what circumstances must be c onsidered

in a parole hearing, the ultimate r esult (parole or denial) i s a

matter left completely to the parole panel's discretion.

Subsection 8(e) also provides that the parole file contain

"all pertinent information relating to the prisoner, including but

not limited to," a sentencing report, the circumstances of the

prisoner's offense, records of the prisoner's pri or social and

criminal history, physical and mental health records, and reports

reflecting the prisoner's conduct, employment, and attitude while

incarcerated. The statutory language makes it clear that this

listing is not exhaustive, i.e., information other than that

mandated by subsection 8(e) may appear in a prisoner's parole

file. 6 Finally, under subsection 18(a) of article 42.18 the

contents of the pri soner's parole file are confidential and7 For purposes of this litigation, limited discovery of parole

file materials, typically limited to in camera review of those

materials by the magistrate judge, was allowed. A number of those

files, including that of Johnson, are part of the record we review.

8 The magistrate judge below largely failed to distinguish

between Johnson's claims in his individual capacity and those

brought on behalf of the prisoner class of which he is a member.

The course of our disposition on appeal does not requ ire us to

distinguish the two, and subsequent references in this opinion to

"Johnson" may include both his personal claims and those brought as

class representat ive. In the ordinary case, however, personal

claims of a class representative, insofar as they parallel class

claims, should be resolved first because as a general rule class

injuries attributable to members of a class but not sustained by a named class representative cannot be remedied in the class action

lawsuit. L ewis v. Casey,

--- U.S. ----, ----, 116 S.Ct. 2174,

2183, 135 L.Ed.2d 606 (1996). S ee, however, County of Riverside v. McLaughlin, 500 U.S. 44, 50-52, 111 S.Ct. 1661, 1667, 114 L.Ed.2d

49 (1991) (noting exception to this rule when representative's

injury is mooted or otherwise nonjusticiable and the nature of the

injury is inherently transitory).

8 privileged and therefore generally inaccessible to the prisoner. 7

II. Protest Letters

A. The Issue

Johnson 8 challenges the statutor y requirement and perceived

Board custom of accepting and considering "protest letters" in the

parole process. Johnson claims that these letters, which include

statements from victims, prosecutors, law enforcement personnel and

the general public opposing the prisoner's parole, of ten contain

inaccurate information about t h e prisoner's background or the

circumstances of his or her offense. Furthermore, much of the

information submitted in these letters bears no relationship to the

"two statutory factors," i.e., the likelihood of harm to the public

and the likelihood of a favorable parole outcome, which the Board

is purpor tedly required to consider in making parole9

determinations. Johnson submits that the resultant system is

arbitrary and capricious and treats prisoners who are the target of

protest letters differently from prisoners who do not receive

protest letters.

B. The Magistrate Judge's Ruling

The magistrate judge found, aft er reviewing testimony from

both prisoners and Board members, that "inmates who receive protest

letters of any kind are treated differently from inmates who do

not." J ohnson II, 910 F.Supp. at 1218. He continued by noting

that the Board has no promulgated rule or articulated policy

regarding the verification or con sideration or effect of protest

letters. I d. at 1218-1219. The magistrate judge further found

that these letters, in some instances spawned by vindictiveness or

political pressure, often contain inaccurate statements of fact or

discuss unadjudicated offenses. Id. at 1219-1220.

The magistrate judge began his legal analysis by correctly

noting that Texas law does not create a liberty interest in parole

and accordingly Johnson could not state a claim for a Due Process

violation based upon the Board's procedures. Allison v. Kyle, 66

F.3d 71 (5th Cir.1995); O rellana v. Ky l e, 65 F.3d 29 (5th

Cir.1995), cert. denied,

--- U.S. ----, 116 S.Ct. 736, 133 L.Ed.2d

686 (1996); G ilbertson; Creel; Williams v. Briscoe, 641 F.2d 274

(5th Cir.), cert. denied, 454 U.S. 854, 102 S.Ct. 299, 70 L.Ed.2d

147 (1981). The magistrate judge did, however, accept Johnson's

argument that prisoners w ho receive protest letters constitute a

governmental classification for Equal Protection purposes. J ohnson9 Although not necessary to our resolution of this case, we

observe that the magistr ate judge's conclusion that these

"statutory factors" must be considere d in each instance by

individual parole panels is unsupported by the plain lang uage of

the statute. Although these factors are to be the basis under

subsection 8(f)(5) of the "pa role guidelines" which the Board is

directed to "develop an d implement," nothing in the statute

suggests that a direct consideration of these factors is mandated

in individual parole evaluations. Such a reading inflates the

significance of these two factors to the detriment not only of the

parole guidelines themselves but also of the other legislative

limitations upon the Board's discretion, noted in our discussion in

Subpart I, s upra, and runs counter to this Circuit's repeate d

holdings that the Texas parole scheme does not create a legitimate

expectation of release or concomitant protected liberty interest.

Compare Dace v. Mickelson, 816 F.2d 1277 (8th Cir.1987) ( en banc )

(di scussing when state law requiring release upon finding of

particular facts may create a cogni zable liberty interest). We

emphasize that this point is noted for elucidatory purposes only:

in the absence of a cognizable co nstitutional violation, the

situation herein presented, the interpretation and implementation

of the Texas parole statute is a matter for the appropriate state

agencies and not this Court.

10 II, 910 F.Supp. at 1221. After conducting an extensive analysis of

the legislative scheme set out by Texas Code of Criminal article

42.18, the magistrate judge observed that "almost all of the

letters introduced into evidence have little or nothing to do with

the two statutory factors that the Board is to consider when making

parole decisions." 9 I d. at 1227. The magistrate judge then

reached the following, sweeping conclusion:

"The Court hereby determines that the statutory scheme under

which the Board can accept statements, whether writ ten or

oral, and then prevent knowledge of said statements' existence

and prohibit disclosure of their contents and of the writer's

or speaker's identity, violates the equal protection rights of

inmates because the Board, as a rule, denies parole to inmates

who have received prote st statements. The Board's sole

function is to determine whether an inmate should be released

on parole; its function is not to effectively re-try the case

by accepting "testimony' which was inadmissib le at trial on

evidentiary grounds (or would have been inadmissible had

introduction been attempted) or was excluded as part of trial

strategy, or by en tering findings which the actual jury did11

not find at the inmate's trial. Evidentiary determinations

are to b e made in the trial court. The Board is not to

consider unadjudicated offenses or offenses extraneous to the

convi ction for which the inmate is currently incarcerated.

The Board must be bound by the conviction which the inmate

received and must apply the statutory requirements regarding

the time to be served on parole for that conviction, without

adding ad hoc information which results in additional time

being served." Id. at 1228-1229 ( footnote omitted ).

The magistrate judge ordered that the Board adopt a rule providing

that both written and oral protest statements "shall not be

accepted or considered" by parole panels "for any purpose when

making parole decisions" and "shall not be placed in the inmate's

file." Id. at 1229.

C. Analysis

"The Fourteenth Amendment's promise that no person shall be

denied the equal protection of the laws must co-exist with the

practical nec essity that most legislation classifies for one

purpose or another, with resulting disadvantage to various groups

or persons." R omer v. Evans,

--- U.S. ----, ----, 116 S.Ct. 1620,

1627, 134 L.Ed.2d 855 (1996) (citations omitted). Thus, "a State

do es not violate the Equal Protection Clause merely because the

classifications made by its laws are imperfect." D andridge v.

Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491

(1970). Rather, as long as they do not burden a fundamental right

or target a suspect class, "state agencies ma y pursue legitimate

purposes by any means having a conceivable rational relationship to

those purposes." S tern v. Tarrant County Hosp. Dist., 778 F.2d

1052, 1054 (5th Cir.1985) ( en banc ), cert. denied, 476 U.S. 1108,

106 S.Ct. 1957, 90 L.Ed.2d 365 (1986).12

Even the deferential "rational basis" scrutiny which is

applied to ordinary governmental classifications is not

appropriate, however, when the challenged law does not create any

classifications at all. As we have previously stated, "if the

challenged government action d oes not appear to classify or

distinguish between two or more relevant pers ons or groups, then

the action----even if irrational- ---does not deny them equal

protection of the laws." Brennan v. Stewart, 834 F.2d 1248, 1257

(5th Cir.1988) (citation omitted). Thus, when we are confronted

with a state action which does not so classify or distinguish, we

need not consider whether there is a "rational basis" for that

action because such state actions are not subject t o Equal

Protection scrutiny. V era v. Tue, 73 F.3d 604, 609-610 (5th

Cir.1996), citing Brennan, 834 F.2d at 1257.

State actors may create classifications facially, when such

categ orization appears in the language of legislation or

regulation, see, e.g., McGinnis v. Royster, 410 U.S. 263, 270, 93

S.Ct. 1055, 1059, 35 L.Ed.2d 282 (1973) ("[t]he determination of an

optimal time for parole eligibility elicited multiple legislative

classifications and group ings"), or d e facto, through the

enforcement of a facial l y neutral law in a manner so as to

disparately impact a discernible group. The Supreme Court has

instructed us time and again, however, that disparate impact alone

cannot suffice to state an Equal Protection violation; otherwise,

any law could be challenged on Equal Protection grounds by whomever

it has negatively impacted. S ee Washington v. Davis, 426 U.S. 229,13

246-250, 96 S.Ct. 2040, 2051-2052, 48 L.Ed.2d 597 (1976). Thus, a

party who wishes to make out an Equal Protection claim must prove

"the existence of purposeful discrimination" motivating the state

action which caused the complained-of injury. McCleskey v. Kemp,

481 U.S. 279, 292-293, 107 S.Ct. 1756, 1767, 95 L.Ed.2d 262 (1987)

(citation omitted ); Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252, 264-266, 97 S.Ct. 555, 563, 50

L.Ed.2d 450 (1977); D avis

, 426 U.S. at 238-240, 96 S.Ct. at 2047.

"Discriminatory purpose in an equal protection context implies that

the decisionmaker selected a particular course of action at least

in part because of, and not simply in spite of, the adverse impact

it would have on an identifiable group." W oods v. Edwards, 51 F.3d

577, 5 80 (5th Cir.1995), q uoting United States v. Galloway, 951

F.2d 64, 65 (5th Cir.1992).

The existence of a discoverable group or classification

antedating the challenged state action is a sine qua non for

proving purposeful discrimination; it cannot tenably be maintained

that the state selected a par ticular course of action to harm an

"identifiable group" when that body did not exist until after the

state acted. In this case, there is no basis for discerning any

such pre-existing "identifiable group." The magistrate judge found

that a class composed of those prisoners who rece ived protest

letters was denied equal treatmen t by the Texas statutes

authorizing the receipt, use, and confidentiality of protest

letters. The challenged laws, however, do not discriminate among

prisoners; they apply to a ll prisoners equally and impact the1 0 Nor do w e find prisoners q ua prisoners to be such a

classification insofar as the parole statute is concerned. While

it is evident that prisoners ar e a "class" within the context of

the general population, see Hilliard v. Ferguson, 30 F.3d 649 (5th

Cir.1994), there is a marked difference when the parole context is

examined. Unlike laws which regulate a specific sub-group in the

larger society, the relevant "general population" for parole laws

is the prison pop ulation; unlike laws that tax, regulate,

s ubsidize, or circumscribe, parole release provisions can n ever

i mpact the ordinary citizen who has not been convicted and

incarcerated.

14 prison population in a manner which the magistrate judge himself

correctly described as "unpredictable." J ohnson II, 910 F.Supp. at

1226-1227 ("[o]bviously, an inmate's potential for receiving

protest letters is unpredictable"). Such a finding of

"unpredictability" negates any argument that the Texas Legislature

or the Board intended that the use of protest letters evidenced by

this record detrimentally impact any particular identifiable

segment of the prison population. 10 Because Johnson has failed to

demonstrate that the State's action targeted a discernible

sub-clas s among the general prison population, the magistrate

judge's ruling must be reversed.

Moreover, the magistrate judge, incorrectly perceiving an

Equal Protection question before him, also failed to properly

consider Texas' justification for the protest letter scheme before

finding an Equal Protection violation. See Bowen v. Owens, 476

U.S. 340, 106 S.Ct. 1881, 90 L.Ed.2d 316 (1986). Under the

r ational basis scrutiny which the magistrate judge should have

undertaken if, as he incorrectly assumed, the protest letter issue

was properly resolvable under an Equal Protection analysis, it was

merely necessary to determine whether "the classification at issue1 1 The provisions of the parole sta tute entitling victims or

their close family member s to notification and an opportunity to

respond are part and parcel of Texas' proclaimed public policy of

furthering the rights of victims, a legitimate and rational state

purpose. S ee Texas Constitution, Article 1, § 30. Affording such

persons protection against reprisal by maintaining the

confidentiality of their protests is similarly rational. Nor is it

irrational for the state to avoid the expense and inconvenience of

formal, adversarial type parole hearings.

12 The magistrate judge cited Sandin v. Conner,

--- U.S. ----,

----, 115 S.Ct. 2293, 2302, 132 L.Ed.2d 418 (1995), for the

proposition that the Board could not use written or oral statements

in parole determinations unless the prisoner had the chance to

review the statements and, if appropriate, rebut them. J ohnson II,

910 F.Supp. at 1228. First, this holding of the magistrate judge,

essentially a type of procedural Due Process hearing requirement,

is contrary to settled precedent. S ee, e.g., Jago v. Van Curen,

454 U.S. 14, 21-22, 102 S.Ct. 31, 36, 70 L.Ed.2d 13 (1981);

Jackson v. Reese, 608 F.2d 159, 160 (5th Cir.1979). Second,

Sandin 's passing reference to the procedures which Hawaii affords

to its state prisoners in the parole process was merely ancillary

to a determination that Hawaiian prisoners had no right to

procedural Due Process in the there-challenged prison disciplinary

hearing, which was the only issue before the Court. S andin

expressed no view as to whether any character of process was constitutionally required for Hawaii parole decisions. For these

reasons, as well as those reflected in our discussion of the reach

of the Due Process Clause in the parole context, infra, the

magistrate judge's statement of the law was incorrect.

The magistrate jud ge also found, relying upon C ook v.

Tex. D ep't of Criminal Justice Planning Dep't, 37 F.3d 166,

168-169 (5th Cir.1994), that the Board could not consider

unadjudicated offenses in parole hearings. J oh nson II, 910

F.Supp. at 1229 n. 73. C ook, however, dealt with the

particular circumstance of prior convictions which this Court

15 bea rs some fair relationship to a legitimate public purpose." 1 1

Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d

786 (1982). The magistrate judge's opinion, however, dwells upon

the nature of the "evidence" which the Board considers, the

inability of prisoners to examine and rebut such evidence, and the

possibility that false information will enter the prisoner's parole

file by way of a protest letter. 12 In so doing, the magistratehad previously set aside on the basis of federal

constitutional violations, and stands only for the

unremarkable rule that when a conviction has been thus

judicially nullified a prisoner may obtain an order enjoining

use of the voided conviction in a parole hearing, and might

even be seen essentially as a federal court enforcing its own prior order. S ee Bloodgood v. Garraghty, 783 F.2d 470 (4th

Cir.1986) (holding parole board has no duty to examine

valid ity of prisoner's convictions); U nited States v.

Francischine, 512 F.2d 827, 828 (5th Cir.) (same), cert.

denied, 423 U.S. 931, 96 S.Ct. 284, 46 L.Ed.2d 261 (1975). In

the absence of such a circumstance, there is nothing

delimiting the Board's consideration of prior offenses,

adjudicated or unadjudicated.

16 judge conflated what should have been two distinct inquiries: 1)

is the application of the laws discriminatory, a matter for the

Equal Protection Clause, and 2) does the application of the laws

produce a result which is unreliable, a concern which speaks to

procedural Due Process.

The protections of the Due Process Clause are only invoked

when State procedures which may prod uce erroneous or unreliable

results imperil a protected liberty or property interest. S ee Olim

v. Wakinekona, 461 U.S. 238, 250-251, 103 S.Ct. 1741, 1748, 75

L.Ed.2d 813 (1983); J ago, 454 U.S. at 16-18, 102 S.Ct. at 34;

M eachum v. Fano, 427 U.S. 215, 223-225, 96 S.Ct. 2532, 253 8, 49

L.Ed.2d 451 (1976); Jay v. Boyd, 351 U.S. 345, 352-361, 76 S.Ct.

919, 924-928, 100 L.Ed. 1242 (1956). It is therefore axiomatic

that because Texas prisoners have no protected liberty interest in

parole they cannot m ount a challenge against any state parole

review pr ocedure on procedural (or substantive) Due Process

grounds. A llison; Orellana; Gilbertson; Creel. Accord, Hill v.

Jackson, 64 F.3d 163 (4th Cir.1995); O 'Kelley v. Snow, 53 F.3d 31913 The underlying dispute on this issue is whether (and if so,

to what extent) a prisoner enjoys a federal right to have accurate

information in his or her parole file. C ompare Townsend v. Burke,

334 U.S. 736, 68 S. Ct. 1252, 92 L.Ed. 1690 (1948) (Due Process

violation for district court to s entence defendant based on

misinformation). We recognize that the jurisprudence in some of

the other circuits is somewhat inconsistent in this area. S ee,

e.g., Perveler v. Estelle, 974 F.2d 1132 (9th Cir.1991) (reviewing

habeas petitions disp uting state parole results under the same

17 (11th Cir.1995); M cCall v. Delo, 41 F.3d 1219 (8th Cir.1994),

cert. denied,

--- U.S. ----, 115 S.Ct. 2623, 132 L.Ed.2d 865

(1995); M alek v. Haun, 26 F.3d 1013 (10th Cir.1994); P hillips v.

Brennan, 969 F.2d 384 (7th Cir.1992), cert. denied, 506 U.S. 1057,

113 S.Ct. 990, 122 L.Ed.2d 142 (1993); Brandon v. D.C. Board of

Parole, 823 F.2d 644 (D.C.Cir.1987); W hite v. Hyman, 647 A.2d 1175

(D.C.C.A.1994); State ex rel. Hattie v. Goldhardt, 69 Ohio St.3d

123, 630 N.E.2d 696 (1994). Were we to allow Johnson's Equal

Protection challenge in the absence of any showing of de jure or de

facto governmental classification, we would be in effect endorsing,

under the aegis of "Equal Protection," the general federal

constitutional right to be free from arbitrary and capricious state

action which our procedural Due Process precedents eschew. I rving

v. Thigpen, 732 F.2d 1215, 1218 (5th Cir.1984) (where Mississippi

parole law does not create a protected liberty interest, a prisoner

"cannot maintain a section 1983 action or a habeas petition on the

grounds that the parole board deprived him of procedural due

process") (citations omitted). Johnson's allegations that the

Board considers unreliable or even false information in making

parole determinations, without more, simply do not assert a federal

constitutional violation. 13 C ompare Dock, 729 F.2d at 1290 ("thereadministrative standard as findings of t he United States Parole

Commission). Johnson relies in large measure upon M onroe v. Thigpen, 932 F.2d 1437 (11th Cir.1991), in which the court found

that a state parole board's admitted use of false information was

arbitrary and capricious and constituted a viola tion of Due

Process. Subsequent Eleventh Circuit precedent, while not

expressly overruling Monroe, has noted that no Due Process rights

exist for parole pr ocedures where there is no legitimate

expectation of parole. S ee O'Kelley, 53 F.3d at 3 21-322.

Furthermore, Monroe itself limits the "right" which it uncovered to

situations where the state admits the use of false information; a prisoner's allegations that false information was used to deny him

parole is insufficient, in the absence of such an admission, to

state a claim under section 1983. Monroe, 932 F.2d at 1442. See

James v. Robinson, 863 F. Supp. 275 (E.D.Va.1994), a ff'd, 45 F.3d

426 (4th Cir.1994).

Additionally, alt hough not relied upon by Johnson, the

Fourth Circuit in Paine v. Baker, 595 F.2d 197 (4th Cir.),

cert. denied, 444 U.S. 925, 100 S.Ct. 263, 62 L.Ed.2d 181

(1979), developed a tripartite test to determine when "false

information" should be expunged from prison records. Monroe

discussed Paine in passing and concluded that language in

Paine indicating a "due process right to be fairly considered

for parole" had been invalidated by the Supreme Court's

subsequent decision in Greenholtz v. Inmates of Nebraska Penal

& Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d

668 (1979). M onroe, 932 F.2d at 1440-1441 n. 8. In addition,

although Paine has not been expressly ove rruled, subsequent

Fourth Circuit cases reflecting this Circuit's view certainly

undercut any contention that the Paine analysis is still

viable in the circuit which initially formulated it. See,

e.g., Hill, 64 F.3d at 170-171. Those courts that continue to

give lip service to Paine have practically emasculated it by

reading its third requirement, that the information be relied

upon to a constitutionally significant degree, in tandem with

subsequent jurisprudence recognizing that there is no

procedu ral Due Process protection for procedures which are

unrelated to a protected liberty interest. S ee Pruett v.

Levi, 622 F.2d 256 (6th Cir.1980); James; McCrery v. Mark,

823 F.Supp. 288 (E.D. Penn.1993); G oldhardt. Contrast

Lowrance v. Coughlin, 862 F.Supp. 1090, 10 99 (S.D.N.Y.1994)

(stating that the Southern District of New York has recognized

a constitutional right to accurate information in a parole

file).

It is our view that the procedural Due Process

protections created in Monroe and Paine are in essence

inconsistent with subsequent precedent in their respective

circuits and that both cases have thus been effectively

18overruled. Whatever the viability of these anomalous cases

today, our precedent is definite and precise on this point:

in the absence of a cognizable liberty interest, a state

prisoner cannot challenge parol e procedures under the Due

Process Clause.

1 4 Th is holding is not a departure from our prior view in

Johnson I, 821 F.2d at 1122-1123. There we found only that Johnson

perhaps could state a cause of action because hi s allegations

concerned protest letters being used as a pretext for

discriminatory treatment of the sub-class of writ writers among the

prison population. S ee id. at 1122 (characterizing Johnson's

claims respecting "use of protest letters in parole determinations"

as arguably including assertions "that writ writers are

... denied

equal protection in this manner" and "that use of such letters

infringes on writ writers' freedom of speech"; emphasis added).

Indeed, this Court expressly disfavored the result obtained below:

"In an effort to support the district court's judgment

regarding the Parole Board's "discretionary' use of

protest letters on grounds not stated by that court, the

defendants su ggest that Johnson has failed to allege

sufficient facts to s tate a claim. Noting that the

fourteenth amendment guarantees "equal laws, not equal

results,' they argue that a rule permitting such

discretion, if applied evenly, presents no constitutional

problem. We agree, but note that Johnson's allegations

do raise suggestions of invidious, group-based

discrimination and infringement of fundamental rights."

19 simply is no cons titutional guarantee that all executive

decisionmaking must comply wi th standards that assure error-free

determinations") ( citations omitted ). Rather, such concerns are

matters for the responsible state agencies and it is to those

bodies that grievances concerning parole procedures shoul d be

addressed. Brandon, 823 F.2d at 649.

"A violation of the equal protection clause occurs only when,

inter alia, the governmental action in question classifies between

two or more relevant persons or groups." V era, 73 F.3d at 609-610.

Johnson has failed to demonstrate this necessary predicate to his

claim. 14 We therefore reverse the magistrate judge's contraryId. at 1122-23 (footnote omitted).

Moreover, we expressly reserved judgment, statin g: "We

intimate, of course, no opinion concerning the possibility of

his stating a claim for which relief might be granted, or, if

he does, the merits of that claim." Id. at 1123. (Emphasis

added).

Because the Johnson I court's rem and depended upon

a ssumptions concerning the identity of the group being

discriminated against which are inapposite to the f indings

below, and because Johnson I in any event expressly reserved

judgment as to whether a claim could even be stated, that

opinion is not inconsistent with our holdings today.

20 ruling and order that on remand the protest letters claim be

dismissed with prejudice.

III. Writ-Writing

A. The Issue

Johnson is a "writ writer," which is generally understood to

mean a prisoner who files lawsuits, and/or assists other prisoners

in the preparation or prosecution of lawsuits, usually against

prison (or sometimes jail) authorities and including conditions of

confinement and habeas cases and suits against law enforcement and

court personnel. Johnson claims that many parole files contain

some record of or reference to a prisoner's litigation activities,

and that this information is considered by parole panels. Johnson

contends that this information is viewed negatively by the Board

and that many prisoners are denied parole at least in part due to

their litigiousness. Johnson contends that the Board is in fact

retaliating against him and the other prisoners who avail

themselves of their constitutional right of access to the courts.

Furthermore, insofar as this practice discriminates against "writ21

writers" in the general prison population, he contends that it

constitutes a violation of the Equal Protection Clause.

B. The Magistrate Judge's Ruling

Reviewing the evidence, the magistrate judge found that writ

writing a ctivities were often discussed in parole interviews and

that documentation of these activities often appeared in parole

files. J ohnson II, 910 F.Supp. at 1214. The magistrate judge also

found that prisoners were entitled to assist other prisoners in

preparing writs and other legal documents. I d. at 1213. After

noting that "historic ally there has been a bias against inmates

considered to be writ writers" by the TDCJ-ID, the magistrate judge

concluded that this bias "restricts, at least as a pr actical

matter, an inmate's access to the courts." J ohnson II, 910 F.Supp.

at 1212. He likewise opined that " [a]ny distinction made between

inmates who seek access to the courts and those who do not violates

the equal protection clause. " I d. at 1213 (emphasis added). Later

in his opinion the magistrate judge c larified his findings of

injury, stating that "this perception of retaliation has chilled,

at least to some extent, inmates' ex ercise of their

constitutionally protected right of access to the courts." I d. at

1215 (footnote omitted).

The magistrate judge ordered the Board to adopt by rule a

policy "that proh ibits consideration of inmates' exercise of the

constitutionally protected right of access to the courts" and

"shall specify that such activity is wholly irrelevant to the

parole decision making process." J ohnson II, 910 F.Supp. at 1215.22

He further required that this rule "shall establish specific,

enforceable sanctions for all violati ons" thereof. I d. In

addition, the order required that "[a]ll existing [inmate] files be

reviewed for and purged of any and all documentation related to an

inmates' litigation activity a s the specific inmate becomes

eligible for [parole] review. Only upon written request of an

inmate shall any litigation material or information be included or

retained in his or her parole file." Id. (emphasis added).

C. Analysis

1. The Retaliation Theory

The elements of a claim under a retalia tion theory are the

plain tiff's invocation of "a specific constitutional right," the

defendant's intent to retaliate against t he plaintiff for his or

her exercise of tha t right, a retaliatory adverse act, and

causation, i.e., "but for the retaliatory motive the complained of

incident

... would not have occurred." W oods v. Smith

, 60 F.3d

1161, 1166 (5th Cir.1995) ( citations omitted ), cert. denied,

---

U.S. ----, 116 S.Ct. 800, 133 L.Ed.2d 747 (1996). In this case,

Johnson must prove that he and other pr isoners engaged in

constitutionally protected litigation activity, were denied parole,

and that such action was taken "in an effort to chill [prisoners']

access to the courts or to punish them for ha ving brought suit."

Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1296 (5th Cir.), cert.

denied, 513 U.S. 926, 115 S.Ct. 312, 130 L.Ed.2d 275 (1994). See

also Serio v. Members of La. State Bd. of Pardons, 821 F.2d 1112,

1114 (5th Cir.1987). The relevant showing in such cases must be1 5 The magistrate judge relied upon the Supreme Court's

pronouncements in Johnson

, 393 U.S. at 483-489, 89 S.Ct. at 748-

750, and Wolff v. McDonnell, 418 U.S. 539, 578-580, 94 S.Ct. 2963,

2986, 41 L.Ed.2d 935 (1974), in concluding that the state could not

retaliate against prisoners who assist other prisoners in preparing

lawsuits. As the Supreme Court's decision in Lewis and our Tighe

opinion make clear, however, while the as sistance of other

prisoners may be one way in which a particular prisoner's right of

constitutional access to the courts is vindicated, such is not in

and of itself a constitutional right. If State regulation or

proscriptio n of "writ writing" endangers a prisoner's ability to

file lawsuits protected under Lewis, then it i s that particular

prisoner's constitutional rights which have been violated. While

23 more than the prisoner's "personal belief that he is the victim of

retaliation." Edwards, 51 F.3d at 580.

It has long been recognized that prisoners generally enjoy a

constitutional right of access to the courts. S ee Johnson v.

Avery, 393 U.S. 483, 483- 485, 89 S.Ct. 747, 748, 21 L.Ed.2d 718

(1969); Ex parte Hull, 312 U.S. 546, 547-549, 61 S.Ct. 640, 641,

85 L.Ed. 1034 (19 41). This right of access for prisoners is not

unlimited, however; rather, it encompasses only "a reasonably

adequate opportunity to file nonfrivolous legal claims challenging

their convictions or conditions of confinement." Lewis v. Casey,

--- U.S. ----, ----, 116 S.Ct. 2174, 2182, 135 L.Ed.2d 606 (1996).

Furthermore, we held i n Tighe v. Wall, 100 F.3d 41, 43 (5th

Cir.1996), that "[p]risoners have n o right to a particular

prisoner's help in legal matters as long as the putative

recipient's const itutional right of access to the courts is not

infringed ." The relevant constitutional protection in this

instance accrues to the benefit of the prisoner in whose name the

lawsuit is filed, not those who assist in the preparation of that

l awsuit. 1 5 S ee Lewis,

--- U.S. at ----, 116 S.Ct. at 2184 ("thejailhouse lawyers may (or m ay not) present an inexpensive and

relatively burdenless means of respecting other prisoners' rights

of access to the courts, the particular means by which Texas

prisoners' constitutional rights are to be vindicated is left as a primary matter to the proper Texas authorities, and federal courts

should not intrude until "some inmate [can] demonstrate that a

nonfrivolous legal claim ha[s] been frustrated or ... impeded."

Lewis, --- U.S. at ----, 116 S.Ct. at 2181.

24 Constitution does not require that prisoners

... be able to conduct

generalized research, but only that they be able to present their

g rievances to the courts"). Thus, neither any frivolous filings

nor secondary litigation activity, i.e., legal research and writing

that does not involve preparation of lawsuits challenging a writ

writer's own conviction(s) or t he conditions of his or her

confinement, may comprise the basis of a retaliation claim.

Conversely, a parole panel's co nsideration of such unprotected

activity in denying a prisoner parole does not infrin ge that

prisoner's constitutional right of access to the courts. I d. at

--

--, 116 S.Ct. at 2182 ("[i]mpairment of any other litigating

capacity is simply one of th e incidental (and perfectly

constitutional) consequences of conviction and incarceration").

The magistrat e judge did not have the benefit of either L ewis or

Tighe, and, of course, is not to be faulted for failing to address

them.

In concluding that the priso ners' constitutional right of

access to the courts had been violated, the magistrat e judge

plainly considered, and proceeded throu ghout on the assumption,

that any and all prisoner writ writing or litigation activity was

constitut ionally protected. At no point did he ever distinguish1 6 We note that, with the exception of pauper petitions under

28 U.S.C. § 1915(d) and the imposition of certain san ctions,

express findings of frivolity are typically not required before a

case is summarily dismissed. Moreover, a lawsuit which does not

app ear frivolous on the face of the pleadings may turn out to be

(and have been) so when the pleadings are pierced at a preliminary

hearing, discovery, summary judgment, or trial. Because it is the

prisoner who bears the burden of proving a constitutional violation

it is the p risoner who must demonstrate the protected character,

including non-frivolity, of prior lawsuits in which he was

involved.

1 7 Although there is record evidence concerning the persistent

litig iousness of the named class representative, Daniel Johnson,

there is no evidence of record concerning the scope or results of

his litigation activities. S ee, however, Johnson v. Kegans, 870

F.2d 992 (5th Cir.1989) (section 1983 action filed by Johnson

dismissed as frivolous); Holmes v. Hardy, 852 F.2d 151 (5th

Cir.1988) (section 1983 action broug ht by Johnson and other

prisoners dismiss ed as frivolous); W hittington v. Lynaugh, 842

F.2d 818 (5th Cir.1988) (section 1983 action brought by Johnson and

another prisoner dismissed as frivolous with sanctions); Johnson

v. Onion, 761 F.2d 224 (5th Cir.1985) (section 1983 action filed by

Johnson dismissed due to failure to present a case or controversy).

Among the other prisoners who testified, Terrence Spellmon stated

that he has filed fifteen lawsuits since being incarcerated. Mark

Fields testified that he has filed "about 200" lawsuits, only six

to eight of those being suits in which he is the named plaintiff.

Robert Delgado testified that he has filed "about twelve lawsuits"

since being incarcerated. Thomas Baranowski, although he did not

give a total number of prior lawsuits filed, alluded to at least

four separate lawsuits he has filed in his own behalf. George Hall

testified that he had filed "quite a few [lawsuits] against

Hutchinson County." Kenneth Thompson, Jr., testified that he has

filed a "considerable amount of litigation" against Texas prison

officials on his own and other prisoners' b ehalf. There is no

finding or evidence indicating even approximately what portion of

priso n er writ writing is constitutionally protected under the

standards of Lewis and Tighe.

Fromour appellate review over the years of very large

n umbers of Texas prisoner suits, we know that a gr eat

many—perhaps the overwhelming majority or even almost all—of

25 between frivolous filings and secondary litigation activity on the

one hand and protected filing s of at least arguable merit on the

other. 16 Almost all of the prisoners who testified alluded to

participation in numero us lawsuits. 1 7 In the absence of detailedthem have been without arguable merit.

1 8 When a substantial amount of a writ writer's time is devoted

to litigation-related activity which is unprotected, generalized

references in the parole file or during parole interviews to

"litigiousness" will usually be insufficient to prove that the

state has retaliated against the prisoner for his or her exercise

of a constitutional right.

26 information regarding the named parties, subject matter, arguable

merit, and disposition of those lawsuits, however, there is no way

to determine the extent to which the prisoners' constitutional

rights of access to the courts, as defined by Lewis and Tighe, are

implicated. Furthermore, when a prisoner's litigation history

includes both protected and unprotected activity, if a parole

panel's adverse action is attributable to unprotected activity and

would have occurred on that basis regardless of the exercise of

protected rights, the claim fails on the element of causation,

i.e., the requirement tha t "but for" the state's motive to

retaliate aga inst the prisoner for the exercise of his

constitutional rights parole wou ld not have been denied. 1 8 S ee

Enplanar, Inc., 11 F.3d at 1297.

While the magistrate judge's use of an improper and overly

inclusive legal stan dard (viewing any and all writ writing as

constitutionally protected) alone requires reversal, we also note

other inadequacies in the findings on which the judgment below

de pends. Because this is an official capacity lawsuit, it is a

condition precedent to liability under section 1983 that the

challenged conduct of the individual Board members be tied to an

official Board custom or policy, formal or informal. Kentucky v.27

Graham, 473 U.S. 159, 165-167, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114

(1985); P olk County v. Dodso n, 454 U.S. 312, 325-327, 102 S.Ct.

4 45, 454, 70 L.Ed.2d 509 (1981). While the magistrate judge did

observe that "writ writing activities are frequently discussed in

parole interviews and that doc umentation of such activities

frequently appears in inmates' parole files," Johnson II, 910

F.Supp. at 1214, he made no finding that these actions were

sufficiently widespread and approved to represent the

implementation of an official formal or informal custom or policy

of the Board. S ee Ruiz v. Estell e, 679 F.2d 1115, 1154 (5th

Cir.1982) ( citation omitted ) ("s ystemwide injunctive relief may

not be predicated on individual misconduct that "is not part of a

pattern of persistent and deliberate official policy' "), opinion

amended in part and vacated in part, 688 F.2d 266 (5th Cir.1982),

cert. denied 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983).

In the absence of this threshold finding, the imposition of

liability, un der either a retaliation or an equal protection

theory, was premature.

Furthermore, while we do not directly address the sufficiency

of the evidence to support the magistrate judge's finding that

there has historically been a bias against writ writers by

employees of the Texas prison sys tem, we nonetheless express

concern over the magistrate judge's reliance, both expressly and

throu g h apparent reliance on witness testimony, upon findings

associated with the hallmark Texas prison litigation case of Ruiz

v. Estelle, 503 F.Supp. 1265 (S.D.Tex.1980), aff'd in part, rev'd28

in part, 679 F.2d 1115 (5th Cir.1982), opinion amended in part and

vacated in part, 688 F.2d 266 (5th Cir.1982), cert. denied 460 U.S.

1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (19 83). Johnson II, 910

F.Supp. at 1212 n. 12. The findings involved in that case were made

more than a decade and a half ago and involved the day-to-day

administration of penal institutions run by the predecessor of the

TDCJ-ID, not the parole system which is the object of this

litigation. Findings that in the past (or present), employees of

other state departments or agencies have exhibited a bias against

writ writers do not support a conclusion that the defendants in

t his case, members of the Board, have acted and continue t o act

with retaliatory animus in denying prisoners parole. The findings

of the Ruiz c ourt are generally inapposite and of only the most

marginal relevance to the current litigation.

In addition, we hold that the magistrate judge's findings of

causation are inadequate because the mere consideration of

litigation activities, even if such activities are protected under

Lewis and Tighe

, does not in and of itself make out Johnson's

retaliation claim. J ohnson II, 910 F.Supp. at 1215-1216 n. 17.

There must be a finding, adequately supported by the evidence, that

pursuant to an established policy or custom (formal or informal),

the Board retaliated against writ writers for engaging in protected

activity by withh olding parole. The causative component of this

claim is an adequately supported finding that the Board's policy or

custom actually played a part in its denial of parole to Johnson

(and other writ writers) and that but for the Board's policy or1 9 In this regard, the dearth of statistical or other evidence

showing the relative parole rates of writ writers versus the

general prison population is damaging to Johnson's case. While the

absence of this evidence is not necessarily fatal to the

retaliation theory, it does diminish Johnson's chances of proving

causation.

We are not unmindful that "[a]n action motivated by

retaliation for the exercise of a constitutionally protected

right is actionable, even if the act, when taken for a

different reason, might have been legitimate." W oods, 60 F.3d

at 1165. The situation of pretext, however, concerns the

e xistence of retaliatory motivation, not causation. Unless

the complained-of action would not have taken place "but for"

the retaliatory animus, then the retaliation claim has not

been made out

. Id. at 1166. Moreover, there must be a

finding that retaliation was actually a "but for" cause of the

complained of action (denial of parole). C f. St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407

(1993) (in claim for discriminatory discharge, there must be

finding that discharge would not have occurred but for

discriminatory animus, not merely that employer's stated

nondiscriminatory reasons were pretextual).

29 custom Johnson (and other writ writers) would not have been denied

parole. 19 Nowhere, however, does the opinion below make any such

determination. Rather, the magistrate judge's opinion merely makes

several references to instances where litigation activities

appeared in parole files or were raised in inte rviews, and

discusses the prisoners' perception of a linkage between parole

denial and prison er litigiousness. There is n o finding whatever

that adverse consideration of writ writing by the Boa rd actually

played a part in its denial of parole to any particular inmate (or

any identified group of inmates). The absence of such a finding is

especially significan t given the background of Johnson and the

other testifying prisoners, which raises substantial doubt as to2 0 Johnson was convicted of aggravated rape, involving the use

of a knife, and began a sentence of lifetime imprisonment on April

26, 1977. When his conviction was affirmed on appeal, five other

pending indictments for rape were dismissed. Johnson's criminal

hist ory includes half-a-dozen prior arrests, and he has escaped

from several jails and prisons in both Texas and Illin ois. The

bulk of the other prisoners who testified similarly face a long

p eriod of incarceration for violent offenses, typically murder

and/or some variety of sexual assault, and have extensive criminal

histories. There is no substantial evidence that similarly

situated prisoners with comparable (or worse) records, but who were

not writ writers, were granted parole in the same general time

frame that these prisoners were denied it.

2 1 The only fair reading of this testimony i s that it relates

solely to direct appeal s of conviction. The staff counsel

testified that "from the mail of the criminal appellants

themselves" and from "pe rsonal conversations with some criminal

defense att orneys" she was informed that appeals were withdrawn

"because they felt they would not be considered for parole." She

als o said "I think some would say they couldn't get it [parole];

others would say they wouldn't be considered." She testified that

in the court she worked for "about 55 to 60 percent of our appeals

each year are criminal. That's about 750, 800 appeals, all

criminal." Although she had been with the court some

eight-and-a-half years, she began noticing the dismissal of appeals

only about three years before her testimony. She further stated

30 whether this record would adequately support such a finding. 20

Finally, we regard the evidence cited by the magistrate judge

t o demonstrate the "chilling" of protected rights system-wide as

inadequate. In support of his finding, the magistrate judge noted

only the testimony of two witnesses: the first, a single prisoner

who once refused to receive legal mail because of his own,

self-generated personal belief that this would improve his chances

of obtaini ng parole; the second, a staff attorney for the 14th

District Court of Appeals in Houston, Texas, wh o related double

hearsay statements purportedly originating from unidentified

prisoners regarding their having "dismissed appeals of their own

convictions," supposedly for parole-related reasons. 21 J ohnson II,that over the last two years "to make an estimate" she would say

"about twenty" appeals—which would be less than 1.5 percent of the

total—had been thus withdrawn. This witness gave no specifics: no

names or descriptions of any particular cases, appellants, or

defense counsel; no copy or extract from any pleading or

correspondence; no particular words quoted or even paraphrased;

no record or log, formal or otherwise, of dismissed appeals; and

nothing to sugges t that any of these some twenty appeals had (or

wer e believed by anybody to have had) any arguable merit. There

was no corroboration for her testimony. She admitted she had no

knowledge whatever as to whether appeal precluded parole

consideration or had any adverse effect on it, but was only

testifying as to "the perception conveyed to" her by appellants and

their attorneys. The witness did not recount any reason given her

for the asserted beliefs of any of these some twenty appellants or their attorneys.

There is no evidence or finding that direct appeal of

one's own conviction was regarded by anybody as "writ

writing." Johnson in his brief states that "[t]he term writ

writer refers to inmates who file or assist others in filing

law suits, including writs of habeas corpus and attacks on

conditions of confinement, seeking injunctive relief or

monetary damages." There is no evidence as to whether or not

the Board had any policy or pract ice to p ostpone either

consideration of parole or the gathering of information for

parole consideration purposes until the conviction resulting

in the incarceration fr om which the inmate might be paroled

became final on direct appeal. We observe that prisoners

whose sentences are ten years or less remain in local custody

pending completion of direct appeal unl ess they request or

consent to transfer to TDCJ-ID. S ee Tex.Code Crim. Proc. Art.

42.09 sec. 4; E x Parte Rodriguez, 5 97 S.W.2d 771

(Tex.Crim.App.1980). There is absolutely no evidence that the

Board had any policy or practice to deny parole to an inmate

once his conviction became final on appeal in whole or in part

because the conviction had been appealed (or that whether the

conviction was appealed was ever noted or discussed in the

parole process).

In sum, the testimony of the st aff attorney is

essentially irr elevant. Moreover, it is far too attenuated

and weak—speaking at most to her conclusory impression of why

les s than 1.5 percent of c riminal direct appeals were voluntarily dismissed in a two-year perio d—to support any

finding of a general chilling effect respecting writ writing.

31 910 F.Supp. at 1215 n. 19. The magistrate judge's conclusion of

constitutional injury relies exclusively upon testimony concerning2 2 Johnson presented no evidence of reduced filings or filings

below what would be normally expected. We observe that in the

twelve months ending June 30, 1985, a total of 2 ,127 suits were

filed by Texas prisoners in federal district court in Texas. In

the twelve months ending June 30, 1990, the total was 2,457; in

the twelve months ending September 30, 1995, it had reached 5,547.

Annual Report of the Director of the Administrative Office of the

U.S. Courts, 1985, 1990, 1995. It is hard to see that there has

been any "chilling."

32 the subjective appraisal of prisoners, with little or not hing in

the way of objective evidence of actual injury. 22 S ee United States

v. Ramsey, 431 U.S. 606, 622-624, 97 S.Ct. 1972, 1982, 52 L.Ed.2d

617 (1977) (to state actionable retal iation claim any "chill" of

protected rig hts must be more than "minimal" and not "wholly

subjective"). Moreover, the findings and evidence do not identify

and address in th is connection writ writing which is protectable

under Lewis and Tighe, as distinguished from other wr it writing.

There is no evidence of any specific writ writing activity

protectable under Lewis and Tighe which was actually foregone

because of this purported "chill." The evidence discussed does not

address any "chill" of the constitutionally protected right of

access to the courts actually suf fered by Johnson, the class

representativ e, and is in any case insufficient to independently

justify systemwid e relief. L ewis,

--- U.S. at

---- - ----, 116

S.Ct. at 2183-2184.

In sum, we conclude that due to the application of an improper

legal standard concerning the extent to which the right of access

to the courts protects particular litigation activities of

prisoners, the judgment finding merit in Johnson's re taliation

claim must be reversed and remanded for further consideration. On2 3 To order relief, whether under a retaliation t heory or an

equal protection theory, the magistrate judge must conclude in this

connection, on the basis of adequate evidence, that consideration

of protected litigation activities by individual Board members was

undertaken pursuant to an established, albeit possibly unwritten or unofficial, custom or policy of the Board.

33 remand, findings must be made regarding the extent to which

Johnson, the only named plaintiff, has engaged in constitutionally

protected litigation activities and whether a Board custom or

policy (formal or informal) authorizing or endorsing punitive

retaliation for that protected activity actually played a part in

its denial of his parole. 2 3 And, if he would have been denied

parole notwithstanding such consideration, an actionable claim is

not established. On the basis of these findings, the trial court

should determine whether Johnson has suffered any injury which

gives him standing to pursue relief in his capacity as class

representative. L ewis,

--- U.S. at ----, 116 S.Ct. at 2183;

Arlington Heights,

, 429 U.S. at 262-266, 97 S.Ct. at 562-563;

Warth v. Seldin, 422 U.S. 490, 502-503, 95 S.Ct. 2197, 2207, 45

L.Ed.2d 343 (1975).

If Johnson is found to have suffered redressable injury in his

capacity as class representative, particularized findings will also

be needed regarding the natur e and scope of the litigation

activities and constitutionally cognizable injuries, if any,

suffered by contemporary class members. Any conclusion that there

is an actionable class injury suffici ently widespread to warrant

systemic relief, whether under a retaliation theor y or an equal

protection theory, must rest on substantially more than the2 4 The class certified, however, was all present and fu ture

inmates of TDCJ-ID, not writ writers, much less those engaged in

constitutionally protected writ writing.

34 historical findings of other courts, such as the Ruiz court, and

the subjective perceptions of class members. L ewis,

--- U.S. at

--

--, 116 S.Ct. at 2184. Finally, any relief ordered under any

theory is to be narrowly confined to remediation of any proven

constitutional violation; no ordered relief may prohibit the

Board's consideration of frivolous lawsuits or other nonprotected

litigation activities in making parole determinations.

2. The Equal Protection Theory

The gene rally applicable legal standards are noted in our

discussion under subpart II(C), supra. And, much of what we have

said regarding the writ writer retaliation theory is likewise

appli cable to the writ writer equal protection theory, including

the fact, fatal to the judgment below, that the magistrate judge

proceeded on the erroneous assumption that any and all writ writing

was constitutionally protected. We assume, a rguendo, that a viable

sub-class of the prison population—i.e. those who engage in

constitutionally protected writ writing—may be shown. 24 To properly

prove his claim under this theory, Johnson had to show that because

of his constitu tionally protected writ writing "he was treated

unfairly compared to other prisoners who were [otherwise] similarly

situated." H illiard v. Board of Pardons and Paroles, 759 F.2d

1190, 1193 (5th Cir.1985) (citation omitted). The magistrate judge

stated that "[a]ny distinction made between inmates who seek access

to the courts and those who do not violates the equal protection35

clause." Johnson II, 910 F.Supp. at 1213.

However, the magistrate judge made no finding that in the

case of Johnson, or of any other sp ecific inmate, adverse

consideration by the Board of his writ writing—much less his

constitutionally protected writ writing—actually played a part in

its denial of par ole to him. Nor does the evidence show this.

Further, no findings were made respecting the treatment meted out

by the Board to comparable segments of the nonlitigious prison

population, and the record does not provide an adequate basis for

any such finding. There is no statistical or similar evidence

whatever in the record comparing the parole rates of litigious and

nonlitigious prisoners, let alone a comparison of those who engage

in constitutionally protected writ writin g and those who do not.

Even were Johnson able to show that the Board had a largely

negative view of writ writing in general, he does not appear to

have demonstrated any actual "disparate" impact upon any "class" of

those engaging in constitutionally protected writ writing.

McCleskey, 481 U.S. at 292-29 3, 107 S.Ct. at 1767 (part of Equal

Protection challenge is proof that "purposeful discrimination "had

a discriminatory effect' "), quoting Wayte v. United States, 470

U.S. 598, 608-609, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985).

We further note that although litigation related activity

tangentially defines the parameters of the allegedly aggrieved

class , the practice actually challenged directly affects only

parole consideration and not a prisoner's ability to file a lawsuit

or assist another in doing so. C ompare Lyng v. Castillo, 477 U.S.2 5 Cf., e.g., Justice Powell's observations in Schneckloth v.

Bustamonte, 412 U.S. 218, 260-262, 93 S.Ct. 2041, 2065, 36 L.Ed.2d

854 (1973) (Powell, J., concurring, joined by the Chief Justice and

Justice Rehnquist):

"At some point the law must convey to those in custody

that a wrong has been committed, that consequent

punishment has been imposed, that one s hould no longer

look back with the view to resurrecting every imaginable

basis for furthe r litigation but rather should look

forward to rehabilitation and to becoming a constructive

36 635 , 637-642, 106 S.Ct. 2727, 2729-2731, 91 L.Ed.2d 527 (1986);

Richard v. Hinson, 70 F.3d 415, 417 (5th Cir.1995), cert. denied,

--- U.S. ----, 116 S.Ct. 2522, 135 L.Ed.2d 1047 (1996); Wayne v.

Tennessee Valley Authority, 730 F.2d 392, 403-404 (5th Cir.1984),

cert. denied, 469 U.S. 1159, 105 S.Ct. 908, 83 L.Ed.2d 922 (1985).

And, not all prisoner litigation activity is protected. L ewis ;

Tighe. Thus, any burden which customary consideration in the

parole process of litigation activity generally may impose upon a

"fundamental right" is "incidental" and does no t warrant strict

scrutiny under an equal protection analysis. P lanned Parenthood of

Southeastern Penn. v. Casey, 505 U.S. 833, 872-874, 112 S.Ct. 2791,

2818-2819 (1992); Y ounger v. Harris, 401 U.S. 37, 49-52, 91 S.Ct.

746, 753-754, 27 L.Ed.2d 669 (1971). Hence, for equal protection

purposes on ly a conceivable rational relationship is required.

Stern, 778 F.2d at 1054. It is simply not irrational to consider

general litigiousness, or the filing (or aiding in the filing or

the fomenting) of frivolous law suits, or concentration on being a

"jail house lawyer," or the like, as anti-social activity which may

to some extent interfere with and adversely reflect on a prisoner's

rehabilitation. 25 If in a rare, given instance such a generalcitizen." (Footnote omitted).

Justice Blackmun stated that he agreed "with nearly all that

Mr. Justice Powell has to say in his detailed and persuasive

concurring opinion." I d. at 249, 93 S.Ct. at 2059. This

portion of Justice Powell's Schneckloth concurrence was cited

with approval in Kuhlman n v. Wilson, 477 U.S. 436, 451-453,

106 S.Ct. 2616, 2626, 91 L.Ed.2d 364 (1986).

2 6 There is no finding and no evidence tending to indicate even

appro x imately what portion of prisoner writ writing is

constitutionally protected. Our experience would suggest that it

is extremely small. See note 17, supra.

37 approach happens to result in the Board's adverse consideration of

a given inmate's constitutionally protected writ writing activity

having actually played a part in its den ial of parole to that

particular inmate, 26 then that may be addressed and redressed under

standards essentially comparab le to those applicable to the

retaliation theory.

W e accordingly reverse and remand the magistrate judge's

ruling on the "writ writer" claim.

IV. The Attorneys' Fee Award

Because the magistrate ju dge's judgment has been reversed,

Johnson can no longer be considered a "prevailing party" entitled

to attorneys' fees. 42 U.S.C. § 1988. The award of attorneys'

fees is accordingly vacated.

Conclusion

The magistrate judge's ruling on the protest letter claim is

reversed and on remand t hat claim shall be dismissed with

prejudice. The magistrate judge's judgment on the writ writer

claim is reversed and remanded for reconsideration and/or further

proceedings in accordance herewith. The magistrate judge's award38

of attorney's fees is vacated.

REVERSED in PART; VACATED in PART; and REMANDED.