IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-50627

DANIEL K. JOHNSON, also known as Dennis D. Kelly,

Plaintiff-Appellant

v.

RISSIE OWENS; STUART JENKINS; DAVID GUTIERREZ; JIMMY 

STUBBLEFIELD; ELVIS HIGHTOWER; JUANITA GONZALES; JAMES 

LAFAVERS; MICHELLE SKYRME; CYNTHIA TAUSS; ROMAN CHAVEZ,

Defendants-Appellees

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 1:13-CV-00394

Before HIGGINBOTHAM, DAVIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Daniel Johnson challenges several conditions of his Texas parole, 

urging that they violate various constitutional provisions in this § 1983 suit. 

I.

Daniel Johnson was convicted of aggravated rape (now classed as 

aggravated sexual assault) of an adult woman in 1977 and sentenced to life 

in prison by a Texas court. He was advised that he would be released on 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 19, 2015

Lyle W. Cayce

Clerk

 

 Case: 14-50627 Document: 00513047405 Page: 1 Date Filed: 05/19/2015
No. 14-50627

parole under conditions including “Special Condition ‘X.’” This condition is 

placed on sex offenders and requires enrollment in a sex offender treatment 

program and submission to polygraph testing, as well as authorizing 

discretionary computer, Internet, and photography restrictions. Months 

later, but before his release, he was advised that several conditions were 

being added to his parole; Mr. Johnson believes this was a response to 

confidential information received from his ex-wife. The new conditions were 

that he was not to contact his ex-wife or three biological children, he was not 

to leave Texas without permission, and he was to be placed on the Super 

Intensive Supervision Program (SISP), which includes electronic monitoring 

of his location.

Once released on parole, Mr. Johnson was denied all access to 

computers and photography equipment; he asked repeatedly for these 

conditions to be removed. A variety of fees related to his parole conditions 

were imposed. He brought suit under § 1983, challenging various conditions 

of his parole. After the suit was filed, he was advised that he was allowed 

access to computers for employment and bill-paying purposes only. The 

parties filed cross-motions for summary judgment, and the district court, 

following the magistrate’s recommendation, denied Mr. Johnson’s motion and 

granted the defendants’, dismissing all claims. After Mr. Johnson timely 

appealed, the SISP condition was lifted.

II.

We review the grant of summary judgment de novo,1 making all 

reasonable inferences in favor of the non-moving party.2 A party may obtain 

summary judgment when “the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, 

1 Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 650 (5th Cir. 2012).

2 Deville v. Marcantel, 567 F.3d 156, 163-64 (5th Cir. 2009).

2

 

 Case: 14-50627 Document: 00513047405 Page: 2 Date Filed: 05/19/2015
No. 14-50627

show that there is no genuine issue as to any material fact and that the 

moving party is entitled to judgment as a matter of law.”3 To avoid summary 

judgment, “[t]he nonmovant must identify specific evidence in the record and 

articulate the manner in which that evidence supports that party’s claim.”4

III.

Mr. Johnson challenges the restrictions on his use of computers and 

photography equipment under the First Amendment. In granting his parole,

the Texas Board of Pardons and Paroles (TBPP) stated that Mr. Johnson was 

“required to comply with . . . special conditions of parole [including] . . . X Sex 

Offender Program.” The Texas Department of Criminal Justice Parole 

Division’s Policy and Operating Procedure 3.6.2 explains that:

Special conditions and discretionary components shall directly 

relate to the identified risk, supervision, and treatment needs of 

the individual offender. 

1. Special Condition “X” 

. . . The officer shall apply the appropriate components on a caseby-case basis to ensure effective supervision. . . .

c. At any time Special Condition “X” is imposed, the officer may 

apply the following components at his discretion. 

. . . 

(2) The offender shall not own, maintain or operate computer 

equipment without a declared purpose and the written 

authorization of the offender's supervising parole officer. . . .

(3) The offender shall not own, maintain, or operate photographic 

equipment, to include Instamatic, still photo, video, or any 

3 Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir. 2001) (quoting 

Fed. R. Civ. P. 56(c)).

4 Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010).

3

 

 Case: 14-50627 Document: 00513047405 Page: 3 Date Filed: 05/19/2015
No. 14-50627

electronic imaging equipment unless approved in writing by the 

offender's supervising parole officer.5

This policy was promulgated under the TBPP’s statutory authority to “impose 

as a condition of parole . . . any condition that a court may impose on a 

defendant placed on community supervision.”6

Mr. Johnson specifies that his constitutional claims are all “as 

applied.”7 Access to computers and photography equipment was first 

completely denied to Mr. Johnson, subject to his ability to secure parole 

officer approval for particular purposes. He was later—and apparently is 

now—authorized to use a computer for work and for paying bills only. 

We address the restriction in its current form.8 Mr. Johnson is banned 

from using photography equipment and from using computers for anything 

other than work and bill-paying unless and until his parole officer determines 

that the conditions should be eased. He explains that he wants to use a

computer to “gain information from governmental websites, participate in the 

legitimate political process and voice his opinion on political and social issues, 

to undertake [genealogical] research, to share family pictures with his family, 

who lives in Illinois, to purchase items on line,” and “for his personal 

litigation.” He wants “to use a camera . . . as a form of expression, to record 

historical sites, cultural and political events, community social events, and 

share those pictures and expression with others.”

5 Tex. Dep’t of Criminal Justice Parole Div., Policy and Operating Procedure 3.6.2, 2, 

4-5, 2011.

6 Tex. Gov't Code Ann. § 508.221; see also Jennings v. Owens, 585 F. Supp. 2d 881, 

885-86 (W.D. Tex. 2008) (explaining the origin of Special Condition X) rev'd, 602 F.3d 652 

(5th Cir. 2010).

7 Accordingly we decline to address his cursory references to facial vagueness and 

overbreadth arguments, which are also waived for inadequate briefing. 

8 Any re-imposition of the total ban would involve fact-sensitive inquiries into the 

reason for the imposition. If the defendants made a habit of repeatedly imposing and 

rescinding the total ban, the situation might be different.

4

 

 Case: 14-50627 Document: 00513047405 Page: 4 Date Filed: 05/19/2015
No. 14-50627

Prisoners’ First Amendment rights may be restricted in ways 

“reasonably related to legitimate penological interests.”9 The First 

Amendment rights of probationers can also be constitutionally restricted if 

“reasonably necessary” for purposes such as protecting the public and 

discouraging recidivism.10 Parole is on the “‘continuum’ of state-imposed 

punishments,” falling between imprisonment and probation,11 and is 

comparable to supervised release in the federal system.12 It follows that 

parolees’ First Amendment Rights may be restricted to a degree intermediate 

to those of prisoners and probationers, and similar to those of offenders on 

supervised release, but we have not made clear exactly what standard 

applies. Few parole cases have presented the issue before us, and our 

analysis in supervised release cases has been largely statutory rather than 

constitutional.13 

In United States v. Bird, the closest we have come to deciding this 

issue, we held that a temporary supervised release restriction of First 

Amendment rights requiring a defendant to stay 1,000 feet from abortion 

clinics was constitutional where it was “reasonably necessary” to further the 

governmental interest in preventing violent activity.14 Because supervised 

release and parole are in comparable positions on the continuum of 

punishments, this holding suggests that parolees’ First Amendment rights 

may be restricted as long as it is reasonably necessary for certain government 

9 Stauffer v. Gearhart, 741 F.3d 574, 584 (5th Cir. 2014).

10 United States v. Locke, 482 F.3d 764, 768 (5th Cir. 2007).

11 Samson v. California, 547 U.S. 843, 850 (2006).

12 See id. at 850, 854-55 (citing supervised release cases interchangeably with parole 

cases for the proposition that parole is intermediate to imprisonment and probation); Doe v. 

Harris, 772 F.3d 563, 571 (9th Cir. 2014) (treating parole and federal supervised release

equivalently for purposes of the “continuum of possible punishments”).

13 See, e.g., United States v. Paul, 274 F.3d 155, 164-65 (5th Cir. 2001) (analyzing 

conditions under 18 U.S.C. §§ 3553 and 3583 rather than the First Amendment).

14 United States v. Bird, 124 F.3d 667, 684 (5th Cir. 1997).

5

 

 Case: 14-50627 Document: 00513047405 Page: 5 Date Filed: 05/19/2015
No. 14-50627

objectives. Bird tells us that this standard is sufficient constitutionally, but 

does not tell us whether it is required. Because the “reasonably necessary” 

standard is used to assess First Amendment restrictions on probationers, 

logically something less than that standard is required to restrict parolees’ 

rights. 

Other circuits’ parole and supervised release cases provide additional 

guidance on the constitutional dimensions of the issue, and support the view 

that even if parolees’ rights may be more readily restricted than probationers’ 

some rational justification is still required. The Ninth Circuit recently 

summarized its case law on the First Amendment protection applicable to 

various classes of registered sex offenders. Following the Second Circuit’s 

decision in Birzon v. King, the court explained that:

[a]lthough parolees “should enjoy greater freedom in many 

respects than a prisoner, . . . the Government may . . . impose 

restrictions on the rights of the parolee that are reasonably and 

necessarily related to the [Government’s] interests.” . . . [B]ecause 

parolees retain some of their First Amendment rights we have . . 

. struck conditions of release that unreasonably burdened those 

rights.15 

Variations on the “reasonably and necessarily related” standard are the rule 

in other circuits as well,16 sometimes phrased in terms of whether the 

restriction is “directly related,”17 “narrowly tailored and . . . directly 

15 Harris, 772 F.3d at 571 (quoting Birzon v. King, 469 F.2d 1241, 1243 (2d Cir. 

1972)).

16 Farrell v. Burke, 449 F.3d 470, 497-98 (2d Cir. 2006) (continuing to utilize the 

Birzon test); United States v. Spilotro, 786 F.2d 808, 816 n.5 (8th Cir. 1986) (noting that 

restrictions on parolees’ First Amendment association rights have been held constitutional 

when “reasonably and necessarily related to . . . substantial governmental interests”).

17 United States v. Nixon, 664 F.3d 624, 627 (6th Cir. 2011).

6

 

 Case: 14-50627 Document: 00513047405 Page: 6 Date Filed: 05/19/2015
No. 14-50627

related,”18 or “reasonably related”19 to governmental goals such as 

rehabilitation and protecting the public. 

Whatever the exact formulation, the question before us is basically one 

of reasonableness; whether the computer and photography restrictions placed 

on Mr. Johnson are reasonably related to achieving important state goals 

such as protecting the public and encouraging reintegration into society.20 

The district court ruled that the partial ban on computer use and total ban on 

photographic equipment, both restrictions susceptible to being lifted in whole 

or part by parole officers, are “reasonably related” to these goals because Mr. 

Johnson is a sex offender. 

The fact that the restrictions on Mr. Johnson can be lifted when parole 

officers find it appropriate,21 that the computer ban allows access for work 

and bill-paying,22 and that photography is a hobby of Mr. Johnson’s rather 

than his livelihood,23 make the restrictions less harsh and more likely to pass 

constitutional muster. Moreover, the policy document setting the contours of 

Special Condition X states that that discretionary conditions should be 

applied on a “case-by-case basis” in accordance with the “identified risk, 

18 United States v. Crandon, 173 F.3d 122, 128 (3d Cir. 1999); United States v. 

Neeley, 420 Fed. App’x. 228, 231-32 (4th Cir. 2011) (citing Crandon in supervised release 

case); United States v. Loy, 237 F.3d 251, 256, 259, 263 (3d Cir. 2001) (same).

19 Behlke v. Jordan, 83 F.3d 424, 1996 WL 208514, at *1 (7th Cir. 1996); see also

United States v. Schoenherr, 504 Fed. App’x. 663, 670-71 (10th Cir. 2012).

20 Mr. Johnson has not questioned that these are sufficiently weighty state goals. 

Though he argues that the defendants never advanced them as reasons for the restriction 

on him, they appear at the beginning of the Parole Division policy document defining 

Special Condition X, which Mr. Johnson placed in the record. See Tex. Dep’t of Criminal 

Justice Parole Div., Policy and Operating Procedure 3.6.2, 1, 2011.

21 United States v. Zinn, 321 F.3d 1084, 1092-93 (11th Cir. 2003) (“We are also 

satisfied that the restriction in this case is not overly broad in that Appellant may still use 

the Internet for valid purposes by obtaining his probation officer's prior permission.”).

22 See United States v. Malenya, 736 F.3d 554, 560 (D.C. Cir. 2013) (noting that 

employment and bill paying are two important tasks that incorporate computers).

23 See Paul, 274 F.3d at 171. 

7

 

 Case: 14-50627 Document: 00513047405 Page: 7 Date Filed: 05/19/2015
No. 14-50627

supervision, and treatment needs” of parolees.24 To the extent this policy is 

carried out, the conditions imposed should logically be “reasonably related” to

the state’s permissible goals. 

The trouble is that Mr. Johnson has presented evidence that the policy 

of imposing the computer and photography restrictions on an individual basis 

was not carried out in his case. Rather, his initial probation officer imposed 

the restriction because Mr. Johnson is a sex offender.25 The defendants have 

offered no explanation of why it is reasonably necessary to severely restrict 

Mr. Johnson’s computer access and ban access to photography, other than his 

sex offender status.26 The defendants make no argument that it is necessary 

or reasonable to broadly categorize offenders in this manner—the Probation 

Department policy in fact contemplates that computer and photography 

restrictions should be applied “case-by-case.” 

Mr. Johnson’s sex offense, aggravated rape of an adult, had no 

connection to computers, the Internet, photography, or minor victims. Nor 

have the defendants identified any aspect of his history or characteristics 

that would make general access to computers or photography equipment 

dangerous or counterproductive—this would be a different case if the 

24 Tex. Dep’t of Criminal Justice Parole Div., Policy and Operating Procedure 3.6.2, 

2, 2011.

25 Compare Pl.’s Mot. for Partial Summ. J., 25, ECF No. 56 (Mr. Johnson stating in 

signed declaration that Parole Officer Stubblefield “informed [Mr. Johnson] that he would 

not allow any parolee on his caseload . . . to possess and use a computer with Internet 

access in their homes, as it was his policy to prevent such use.”) with Ex. P to Resp. in 

Opp’n to Am. Mot. for Summ. J., 6, ECF No. 73-4 (Stubblefield stating in response to 

Request for Admissions that “while it was not my personal policy, I had the right, under 

TDCJ-Parole Division policies and procedures to refuse any sex offender with a Special 

Condition X access to a computer with internet access” (emphasis added)).

26 We note that Mr. Johnson’s counselor wrote a letter requesting that Mr. Johnson’s 

restrictions be partly lifted to allow use of “computer for work related purpose and paying 

his bills only” prior to the condition’s being eased. The defendants do not argue that this 

letter shows the remaining restrictions are “reasonably necessary” or that the request to lift 

certain conditions constitutes a professional opinion that other conditions are necessary.

8

 

 Case: 14-50627 Document: 00513047405 Page: 8 Date Filed: 05/19/2015
No. 14-50627

condition were more tailored, for example restricting access to only certain 

kinds of websites.27 It is easy to see how the broad computer restriction here 

could hinder his reintegration given that it currently blocks his access to 

most e-mail communication, myriad sources of news, and information about 

community events and places of commerce.28 

The Constitution protects parolees’ First Amendment rights as long as 

infringement is not reasonably related to achieving state goals like protecting 

the public. Intrusive restrictions on computers, photography, and Internet 

use have been upheld only where there was a connection between the 

offender or offense and improper use of computers or Internet,29 or 

photography.30 At times they have not been upheld even then.31 Though we 

27 See, e.g., United States v. Crume, 422 F.3d 728, 733 (8th Cir. 2005) (“[T]he district 

court can impose a more narrowly-tailored restriction on Mr. Crume's computer use 

through a prohibition on accessing certain categories of websites and Internet content and 

can sufficiently ensure his compliance with this condition through some combination of 

random searches and software that filters objectionable material.”); United States v. Sofsky, 

287 F.3d 122, 127 (2d Cir. 2002) (noting methods by which Internet usage may be 

monitored); United States v. White, 244 F.3d 1199, 1206-07 (10th Cir. 2001) (noting 

availability of filtering software).

28 See, e.g., Malenya, 736 F.3d at 560 (noting the many uses of computers and the 

Internet); Sofsky, 287 F.3d at 126 (same).

29 See, e.g., Locke, 482 F.3d at 768 (in probation case, upholding Internet restriction 

where defendant used Internet to acquire child pornography); Crandon, 173 F.3d at 127-28 

(upholding 1-year ban on Internet use during supervised release where defendant “used the 

Internet as a means to develop an illegal sexual relationship with a young girl”); United 

States v. Peterson, 248 F.3d 79, 82-83 (2d Cir. 2001) (in probation case, overturning broad 

restriction on computer and Internet access in part because defendant’s sex offense had no 

“connection to computers or to the Internet”).

30 See, e.g., Paul, 274 F.3d at 170-71 (in supervised release case, upholding 

restriction on photography equipment where defendant possessed photographs of naked 

local children, and there was evidence he may have produced child pornography).

31 See, e.g., Crume, 422 F.3d at 733 (in supervised release case, vacating ban on 

Internet and computer use without permission of parole officer where defendant possessed 

child pornography on his computer); United States v. Freeman, 316 F.3d 386, 387-88, 391-

92 (3d Cir. 2003) (in supervised release case, vacating ban on possessing computer in home 

and using Internet without parole officer permission where defendant possessed child 

pornography on his laptop); Sofsky, 287 F.3d at 124, 126-27 (in supervised release case, 

overturning ban on computer or Internet use without probation officer permission where 

defendant possessed over 1,000 child pornography images on computer).

9

 

 Case: 14-50627 Document: 00513047405 Page: 9 Date Filed: 05/19/2015
No. 14-50627

recognize parole officers’ expertise in fashioning parole conditions, some 

rational connection must connect the First Amendment restriction to Mr. 

Johnson and the state’s goals. Here, Mr. Johnson declares that no such 

connection exists, and has not been gainsaid. Simply stating that these 

restrictions relate to Texas’s protection and reintegration goals does not 

make it so, in the absence of logical or factual connections. Otherwise every 

conceivable deprivation of rights would be constitutionally permissible. 

The fact that someone raped an adult woman and is thus a sex 

offender, without more, is not enough to show that severe restrictions on 

computer and photography access are reasonably related to Texas’ interests 

in reintegration and protection. The district court’s grant of summary 

judgment on the First Amendment claims based on Mr. Johnson’s sex 

offender status was thus error, and we reverse. Because the court accepted 

Mr. Johnson’s sex offender status as sufficient to support the restrictions, it 

did not address Mr. Johnson’s signed declarations and other evidence on this 

issue. We remand so that the court may determine in the first instance 

whether Mr. Johnson has created a genuine issue of material fact as to the 

non-existence of a reasonable connection between the restrictions and the 

offender—some connection beyond Mr. Johnson’s conviction for aggravated 

rape—which causes the restrictions to be reasonably necessary.

IV.

Mr. Johnson urges that the restriction against his traveling outside of 

Texas without permission32 violates the equal protection clause. He claims 

that the restriction was placed on him with ill will by the board members, 

based on malicious false information from his ex-wife and children, and 

treats him more harshly than higher-risk parolees. He cites Snowden v. 

32 Permission has not been forthcoming, though Mr. Johnson has sought it.

10

 

 Case: 14-50627 Document: 00513047405 Page: 10 Date Filed: 05/19/2015
No. 14-50627

Hughes for the proposition that “intentional or purposeful discrimination” in 

administering the parole system may violate equal protection.33 But he offers 

no evidence to support his contention that the defendants’ decision to restrict 

his travel was based on ill will or otherwise constituted “clear and intentional 

discrimination.”34 Nor does he argue he has shown he was treated differently 

from similarly situated parolees without a rational basis,35 instead explaining 

that the discovery period expired before he could gather the necessary 

information.36 In the absence of such evidence, Mr. Johnson’s equal 

protection claim fails. 

V.

Mr. Johnson argues that the sex offender therapy and SISP 

conditions37 and the various required fees associated with his parole violate 

the ex post facto clause.38 The ex post facto clause bars “enactments which, 

by retroactive operation, increase the punishment for a crime after its 

commission.”39 Conditions of parole could increase the punishment for a 

crime by affecting “the length of sentence if the condition was so onerous that 

it was effectively impossible to meet.”40 Parole conditions might also 

33 321 U.S. 1, 8 (1944).

34 Id.

35 See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

36 We note that Mr. Johnson was granted a thirty-day discovery extension.

37 Though the SISP condition has been lifted, “voluntary cessation of a challenged 

practice does not deprive a federal court of its power to determine the legality of the 

practice, even in cases in which injunctive relief is sought.” Meza v. Livingston, 607 F.3d 

392, 400 (5th Cir. 2010) (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 

289 (1982)).

38 Mr. Johnson notes that his ex post facto claims below included that he was 

subjected to unreliable polygraph testing (discussed in part VII), but does not challenge the 

merits of the grant of summary judgment on that claim. He waives any ex post facto claim 

based on the computer/photography restrictions, choosing to focus on First Amendment 

claims.

39 Garner v. Jones, 529 U.S. 244, 249 (2000).

40 Vineyard v. Keesee, 70 F.3d 1266, 1995 WL 696732, at *1 (5th Cir. 1995).

11

 

 Case: 14-50627 Document: 00513047405 Page: 11 Date Filed: 05/19/2015
No. 14-50627

constitute additional punishment under the intents-effects test,41 which asks 

“whether 1) the legislature intended the sanction to be punitive, and 2) the 

sanction is ‘so punitive’ in effect as to prevent courts from legitimately 

viewing it as regulatory or civil in nature.”42 We have said that only fees are 

likely to constitute punitive parole conditions, and rejected challenges to 

“electronic monitoring, urinalysis, driving restrictions, and curfew.”43

Neither the defendants nor the court below found fault with Mr. 

Johnson’s assertion that the conditions he challenges result from laws 

enacted after his 1977 conviction. Rather the defendants argued and the 

district court found that the conditions did not increase the punishment for 

Mr. Johnson’s crime. 

a.

Mr. Johnson has not shown that either the sex offender therapy or the 

SISP conditions are impossible for him to meet. Although some of the 

mandated therapy goals may not apply to him, it appears from Mr. Johnson’s 

filings that the providers recognize his overall participation in the program as

sufficient progress and consider him to be complying. As to SISP, while 

equipment malfunctions have apparently resulted in false reports of 

violations by Mr. Johnson, and his medical conditions have sometimes 

prevented him from keeping to his prescribed schedule and routes, he was 

not re-incarcerated as a result. Moreover, his level of compliance was 

apparently considered sufficient for the condition to be lifted in November 

2014. On these facts, Mr. Johnson has not created a genuine issue of fact as 

to whether it was effectively impossible for him to comply with the SISP 

condition. 

41 Rieck v. Cockrell, 321 F.3d 487, 487-88 (5th Cir. 2003).

42 Moore v. Avoyelles Correctional Ctr., 253 F.3d 870, 872 (5th Cir. 2001).

43 Vineyard, 1995 WL 696732, at *1-2.

12

 

 Case: 14-50627 Document: 00513047405 Page: 12 Date Filed: 05/19/2015
No. 14-50627

Mr. Johnson has also not shown that either the sex offender therapy or 

SISP conditions are punitive under the intents-effects test. He has offered no 

evidence that the laws authorizing the conditions are intended to be punitive 

or that the TBPP intended their application to him to be punitive. As to the 

second step of the test, the “most significant question . . . is whether the law 

while perhaps having certain punitive aspects, serve[s] important 

nonpunitive goals. A law serving nonpunitive goals is not punishment, even 

though it may bear harshly on one affected.”44 Here, despite the perhaps 

well-deserved criticism Mr. Johnson levels at the conditions applied to him, 

both serve important non-punitive functions such as protecting the public.

b.

Mr. Johnson has been required to pay fees associated with his parole, 

including “counseling and supervision fees,” the cost of a landline to allow 

electronic monitoring, and “polygraph and evaluation fees.” He declares that 

he is able to make these payments, totaling over $1000 as of January 2014, 

only due to “assistance from friends.” 

We have said that “[b]ecause parole in Texas is not part of a 

defendant's punishment, the change in the parole procedures . . . that 

imposed [] parole supervision fees was not a violation of the ex post facto 

clause.”45 Yet we previously recognized that “[a] statute may be 

impermissibly retrospective, ‘even if it alters punitive conditions outside the 

sentence itself’”46 and contemplated that parole fees could in some cases 

constitute ex post facto punishment.47 In this case, Mr. Johnson’s ex post 

facto claim does not survive summary judgment.

44 Moore, 253 F.3d at 873 (internal quotation marks and citations omitted).

45 Walp v. Bozarth, 138 F.3d 951, 1998 WL 110049, at *1 (5th Cir. 1998). 46 Vineyard, 1995 WL 696732, at *1 (quoting Weaver v. Graham, 450 U.S. 24, 32 

(1981)); see also Sheppard v. State of La. Bd. of Parole, 873 F.2d 761, 764 (5th Cir. 1989). 47 Vineyard, 1995 WL 696732 , at *1-2; Sheppard, 873 F.2d at 764.

13

 

 Case: 14-50627 Document: 00513047405 Page: 13 Date Filed: 05/19/2015
No. 14-50627

Mr. Johnson makes no effort to show that the fees were intended to 

punish parolees, so to survive summary judgment he must show a genuine 

issue of fact as to whether the fees are effectively impossible to pay or 

whether they are “‘so punitive’ in effect as to prevent courts from legitimately 

viewing [them] as regulatory or civil in nature.”48 Mr. Johnson declares that 

he would not be able to pay the fees without help from friends, but points this 

court to no evidence of his finances or ability to pay, relying instead on 

conclusory assertions. He also declares that his continued successful 

compliance with the terms of parole depends on his paying the fees. 

However, his filings show that at least some of his fees are subsidized and 

that failure to pay therapy or polygraph fees is a “failure to participate in 

treatment” only if “the offender’s ability to pay has been established.”

Given Mr. Johnson’s failure to introduce evidence of his inability to pay 

the fees beyond bare assertions, he has not created a genuine issue of fact 

that the fees are impossible for him to meet. For the same reason, and 

especially in light of the self-evident non-punitive reasons for charging 

parolees fees to cover the costs associated with their parole, he has not 

created a genuine issue of material fact that the fees are punitive under the 

intents-effects test.

VI.

Mr. Johnson argues that the SISP condition and sex-offender therapy 

requirement violate his right to be free from cruel and unusual punishment 

under the Eighth Amendment49 and violate substantive due process.50 To 

48 Moore, 253 F.3d at 872.

49 Mr. Johnson also notes that his Eighth Amendment claims in the district court

included that he was subjected to unreliable polygraph testing (discussed below in part 

VII), but does not challenge the grant of summary judgment on the merits.

50 Mr. Johnson makes only a procedural argument about the polygraph requirement, 

and waives any claim related to interstate travel, as discussed in Part VII.

14

 

 Case: 14-50627 Document: 00513047405 Page: 14 Date Filed: 05/19/2015
No. 14-50627

succeed on his Eighth Amendment claims, Mr. Johnson must show deliberate 

indifference—that the defendants “[knew] of and disregard[ed] an excessive 

risk to [his] health or safety.”51 Substantive due process protects against 

arbitrary abuses of government power without reasonable justification52—

forbidding “only the most egregious official conduct,” that which “shocks the 

conscience.”53 We have required a showing of at least “deliberate 

indifference” in order to prove a substantive due process violation has 

occurred.54

As to the sex-offender therapy condition, Mr. Johnson has not created a 

genuine issue as to whether the defendants were deliberately indifferent to 

an excessive risk of harm. In a signed declaration, he stated that the therapy 

causes him “significant mental and even emotional distress.” It is 

“distressing and anguishing to [him], personally, to be forced to participate 

and show progress” in therapy sessions which focus on issues such as deviant 

fantasies, relevant to repeat offenders with minor victims but not to him. In 

addition, Mr. Johnson submits an affidavit from a Licensed Professional 

Counselor and former Texas Sex Offender Treatment Provider stating that 

the therapy “could be counterproductive.” This is not enough to establish an 

“excessive risk” or to be conscious shocking. Whatever the wisdom of 

requiring a parolee such as Mr. Johnson to participate in this therapy, he has 

not produced evidence that it causes such harm as to violate his Eighth 

Amendment or substantive due process rights.

51 Farmer v. Brennan, 511 U.S. 825, 837 (1994).

52 County of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998)

53 Id. at 846.

54 See Hernandez ex rel. Hernandez v. Tex. Dept. of Prot. and Reg. Servs., 380 F.3d 

872, 880 (5th Cir. 2004); see also Daniels v. City of Dallas, 272 Fed. App’x. 321, 323 (5th Cir. 

2008).

15

 

 Case: 14-50627 Document: 00513047405 Page: 15 Date Filed: 05/19/2015
No. 14-50627

Regarding the SISP condition, we recognize Mr. Johnson’s claimed 

injuries are not trivial. He states that he has been forced to urinate on 

himself in public (due to a medical condition occasioning frequent urination) 

in order to avoid violating SISP terms by deviating from a prescribed 

itinerary to find a bathroom. He has also been repeatedly prevented from 

sleeping due to malfunctioning equipment and related phone calls in the 

middle of the night. By restricting his ability to exercise, SISP has also led to 

an increase in the pain he is caused by a preexisting spinal condition. 

Mr. Johnson does not provide evidence of the frequency of the urination 

and back pain issues, nor of whether they continued after the defendants 

were made aware of the problems. His only argument that the defendants

were aware of the harm caused by SISP is that they were made so by his 

filings in this case. Assuming his court filings are sufficient evidence of the 

defendants’ awareness of the harm, his failure to show that conditions 

remained the same after the defendants received notice leaves him unable to 

show that they were deliberately indifferent to excessive risks.

With regard to the sleep disruption stemming from the malfunctioning 

monitoring equipment, Mr. Johnson’s filings make it clear that parole officers

attempted to correct the problem by replacing the equipment several times 

before the SISP condition was finally removed. Under these circumstances,

the defendants’ behavior cannot be said to be deliberately indifferent, or to 

shock the conscience.

VII.

Mr. Johnson raises several other issues. First, he argues that the 

defendants never moved for summary judgment as to his Eight Amendment, 

Substantive Due Process, and ex post facto claims based on his being 

subjected to unreliable polygraph tests, or as to his equal protection claim 

regarding the interstate travel restriction. A district court may grant 

16

 Case: 14-50627 Document: 00513047405 Page: 16 Date Filed: 05/19/2015
No. 14-50627

summary judgment sua sponte as long as it gives the parties notice and “a 

reasonable time to respond.”55 The magistrate’s Report and Recommendation 

clearly recommended that “summary judgment should be GRANTED in favor 

of Defendants on all of Johnson’s claims for relief.” Mr. Johnson was given 

fourteen days to respond with objections, in which he was free to highlight 

any materially disputed facts and his legal arguments as to these claims. His 

objections demonstrate that he understood the magistrate was recommending 

summary judgment be granted on the polygraph and interstate travel claims. 

As such we find the district court’s grand of summary judgment was not 

procedurally improper. 

Mr. Johnson has waived several claims by failing to adequately brief 

them. Although we construe pro se plaintiffs’ briefs liberally against waiver, 

such plaintiffs must still brief issues to preserve them.56 Mr. Johnson’s 

conclusory statements about the impact of the interstate travel restriction on

his First and Fourteenth Amendment family association rights are

insufficient. So is his one-sentence objection to “the failure of the Appellees’ 

counsel to serve” certain summary judgment exhibits on him.

Mr. Johnson also appeals the district court’s orders denying his motion 

to compel production of letters written by his former wife and his children, 

which were given to the TBPP prior to the imposition of the SISP, interstate 

travel, and no-contact restrictions. Claims of privilege are disfavored, 

particularly in § 1983 cases,57 yet here the letters were given in confidence, 

and that confidence is key to maintaining the relationship between members 

of the public and the TBPP, which the community through the legislature has 

55 F.R.C.P. 56(f); Love v. Natl. Med. Enterprises, 230 F.3d 765, 770 (5th Cir. 2000) 

(“[I]t is well-settled that a district court may grant summary judgment sua sponte, ‘so long 

as the losing party has ten days notice to come forward with all of its evidence’ . . . .”).

56 Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988).

57 ACLU v. Finch, 638 F.2d 1336, 1343-44 (5th Cir. Unit A Mar. 1981).

17

 

 Case: 14-50627 Document: 00513047405 Page: 17 Date Filed: 05/19/2015
No. 14-50627

made clear should be fostered. Importantly, Mr. Johnson has not explained 

how the letters would help him to prove his constitutional claims related to 

the SISP and the interstate travel restrictions, the only relevant conditions in 

this appeal. As such, the defendants met the four-part test for recognition of 

a state privilege,58 and the district court did not abuse its discretion in 

denying Mr. Johnson’s motion to compel.

_____________

We VACATE the district court’s grant of summary judgment against 

Mr. Johnson’s as-applied First Amendment Claims and REMAND for further 

proceedings. We AFFIRM the remainder of the district court’s judgment.

58 Finch, 638 F.2d at 1344 (listing four necessary factors for honoring state privilege 

rules).

18

 

 Case: 14-50627 Document: 00513047405 Page: 18 Date Filed: 05/19/2015