Littlepage v. Trejo et al

MOTION for Summary Judgment

W.D. Tex.March 23, 2017

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION ANGEL DAWN LITTLEPAGE Plaintiff V. 1) RAYMOND TREJO, in his Official Capacity as Registrar of the Texas Department of Public Safety-Sex Offender Registration Bureau; 2) VINCENT CASTILLEJA, in his Official Capacity as Manager of the Texas Department of Public Safety-Sex Offender Registration Bureau; 3) STEVEN McCRAW, in his Official Capacity as Director of the Texas Department of Public Safety; and, 4) KEVIN PHILLIPS, in his Official Capacity as Chief of Police of the City of Gainesville, Texas. Defendants CAUSE NO. 1:17-CV-00190-RP PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Richard Gladden Texas Bar No. 07991330 1200 West University Dr., Suite 100 Denton, Texas 76201 940/323-9300 (voice) 940/539-0093 (facsimile) richscot1@hotmail.com (email) Attorney-in-Charge for Plaintiff Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 1 of 86 i TABLE OF CONTENTS Page Table of Contents………………………………………………………………. i Index of Authorities……………………………………………………………. ii I. Standard for Summary Judgment…………………………………………….. 2 II. Identity of Defendant Parties………………………………………………... 3 III. Basis of Defendant’s Liability……………………………………………... 4 IV. Relevant Facts……………………………………………………………… 8 V. Plaintiff’s Grounds for Summary Judgment, and Relief Requested………... 22 VI. Argument…………………………………………………………………... 25 A) The Constitutional Merits……………………………………………… 25 B) The Defendants’ Contentions………………………………………….. 26 C) Equitable Relief and Title 42 U.S. C. Section 1983…………………… 31 D) Declaratory Relief……………………………………………………… 32 E) General, Permanent Injunctive Relief………………………………….. 33 F) Additional More Specific, Injunctive Relief (The “Clear and Convincing Evidence” Requirement) …………………………………. 34 G) Nominal Damages……………………………………………………… 35 H) Attorneys’ Fees (Request for “Prevailing Party” Status”)……………... 37 Prayer………………………………………………………………………....... 38 Certificate of Service…………………………………………………………... 39 APPENDICES: EX NO. Affidavit of Plaintiff Angel Dawn Littlepage…………………………………... ONE Indictment……………………………………………………………………… TWO Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 2 of 86 ii EX NO. State Court Order Granting Community Supervision…………………………. THREE Affidavit of Frances Thomas…………………………………………………… FOUR Email Correspondence Between Def. Trejo & Jones………………………….. FIVE Affidavit of Thomas Daniels……………………………………………………. SIX “Pre-Release” Notification, Sex Offender Registration Form………………… SEVEN “Verification,” Sex Offender Registration Form………………………………. EIGHT Image of Defendants’ Online Depiction of Plaintiff as a “Sex Offender”…….. NINE Article VI, Section 13-131, Gainesville City Ordinance Code………………… TEN Article VI, Section 14-11, Gainesville City Ordinance Code………………….. ELEVEN INDEX OF AUTHORITIES Cases: Page Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)…………………………….. 7 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)………………………… 2, 3 Blanchard v. Bergeron, 489 U.S. 87 (1989)…………………………………… 37 Carey v. Piphus, 435 U.S. 247 (1978)…………………………………………. 37 Celotex Corp. v. Catrett, 477 U.S. 317 (1986)………………………………… 2 City of St. Louis v. Praprotnik, 485 U.S. 112 (1988)…………………………... 7 Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558 (1990). ………………………………………………………………………... 36 Christian Legal Soc. Chapter of the Univ. of California v. Martinez, 561 U.S. 661 (2010). ………………………………………………………………….. 4 Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004)……………………………… passim Commonwealth v. Hayle, 719 A.2d 763 (Pa. Super. Ct. 1998)………………... 35 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 3 of 86 iii Page Doe v. Fauver, 3 F.Supp.2d 485 (D.N.J.1997)………………………………… 34 Doe v. Pataki, 3 F.Supp.2d 456 (S.D.N.Y. 1998)……………………………… 35 Doe v. Sex Offender Registry Board, 41 N.E. 3d 1058 (Mass. 2015)………….. 35 E.B. v. Verniero, 119 F.3d 1077 (3rd Cir. 1997)……………………………….. 34 Edelman v. Jordan, 415 U.S. 651 (1974)……………………………………… 4 Ex Parte Poe, 751 S.W.2d 873 (Tex.Crim.App.1988)………………………… 30 Flores v. Cameron County, Texas, 92 F.3d 258 (5th Cir. 1996)……………….. 7 Hafer v. Melo, 502 U.S. 21 (1991)…………………………………………….. 5, 36 Hopkins v. Sanders, 199 F.3d 968 (8th Cir.1999)……………………………… 36 Jett v. Dallas Ind. School District, 491 U.S. 701 (1989)………………………. 7 Landgraf v. USI Film Products, 968 F.2d 427 (5th Cir. 1992)…………………. 36 MCI Telecommunication Corp. v. Bell Atlantic-Pennsylvania, 271 F.3d 491 (3rd Cir. 2001) …………………………………………………………………. 5 Meza v. Livingston, 607 F.3d 392 (5th Cir. 2010)……………………………… passim Milliken v. Bradley, 433 U.S. 267 (1977)……………………………………… 4 Orellana v. Kyle, 65 F.3d 29 (5th Cir. 1995)…………………………………… 5 Papasan v. Allain, 478 U.S. 265 (1986)……………………………………….. 4 Peterson v. City of Fort Worth, Texas, 588 F.3d 838 (5th Cir. 2009)………….. 5 Quern v. Jordan, 440 U.S. 332 (1979)………………………………………… 4 State v. Norman, 808 N.W.2d 48 (Neb. 2012)…………………………………. 35 Will v. Michigan Department of State Police, 491 U.S. 58 (1989)…………….. 4 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 4 of 86 iv Page Williams v. Ballard, 2004 WL 1499457 (June 18, 2004), recommendation adopted, 2004 WL 2203250 (N.D.Tex., Sept. 30, 2004)(unpublished) ……………………….. 32 World Wide Street Preachers Fellowship v. Town of Columbia, 591 F.3d 747 (5th Cir. 2009) ………………………………………………………………... 7 Statutes, Codes, Rules, and Constitutional Provisions: Article 42.015(a), Texas Code of Criminal Procedure………………………… 9, 10, 28 Article 62.001(5)(E), Texas Code of Criminal Procedure……………………... passim Section 20.02, Texas Penal Code………………………………………………. 9, 10, 29 Act of May 24, 2005, Tex. H.B 867, 79th Leg., R.S., ch. 1008, §1.01 (2005); 2005 Tex.Gen.Laws 3385 ………………………………………………………. 8 Article VI, Section 13-131, Gainesville City Ordinance Code………………… 21 Article VI, Section 14-11, Gainesville City Ordinance Code………………….. 21, 22 Title 28 U.S.C. Sections 1343 (a)(4)…………………………………………… 1, 24, 32, 33 Title 28 U.S.C. Section 2201…………………………………………………... 23, 32 Title 42 U.S.C. Section 1983…………………………………………………... passim Title 42 U.S.C. Section 1988…………………………………………………... 1, 25, 37, 38 Rule 56, Federal Rules of Civil Procedure…………………………………….. 1 Local Rule CV-7 (j), Rules of the U.S. District Court, Western District of Texas …………………………………………………….............. 38 Eleventh Amendment, U.S. Constitution………………………………………. 4, 5, 35-37 Fourteenth Amendment, U.S. Constitution…………………………………….. passim Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 5 of 86 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION ANGEL DAWN LITTLEPAGE Plaintiff V. 1) RAYMOND TREJO, in his Official Capacity as Registrar of the Texas Department of Public Safety-Sex Offender Registration Bureau; 2) VINCENT CASTILLEJA, in his Official Capacity as Manager of the Texas Department of Public Safety-Sex Offender Registration Bureau; 3) STEVEN McCRAW, in his Official Capacity as Director of the Texas Department of Public Safety; and, 4) KEVIN PHILLIPS, in his Official Capacity as Chief of Police of the City of Gainesville, Texas. Defendants CAUSE NO. 1:17-CV-00190-RP PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT COME NOW Plaintiff Angel Dawn Littlepage (“Plaintiff”), and, pursuant to the Due Process Clause of the Fourteenth Amendment to the United States Constitution; Title 28 U.S.C. Sections 1343 (a)(4); Title 42 U.S.C. Section 1983 and 1988; and Rule 56(c) of the Federal Rules of Civil Procedure, files this Motion for Summary Judgment, and in this connection would show unto the Court as follows: Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 6 of 86 2 I. STANDARD FOR SUMMARY JUDGMENT The purpose of summary judgment is to isolate and dispose of factually insufficient claims or defenses.1 Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”2 A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”3 The substantive law identifies facts that are material. The party moving for summary judgment has the burden to show that there is no genuine issue of fact and that it is entitled to judgment as a matter of law.4 If the movant bears the burden of proof on a claim or defense on which it is moving for summary judgment, it must come forward with evidence that establishes “beyond peradventure all of the essential elements of the claim or defense.”5 Once the movant has carried its burden, the nonmovant “must set forth specific facts showing that there is a genuine issue for trial.”6 The nonmovant must adduce affirmative evidence.7 When considering a motion for summary judgment, the court cannot make credibility determinations, weigh evidence, or draw inferences for the movant.8 The 1 Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). 2 FED. R. CIV. P. 56 (c). 3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 4 Id., 477 U.S. at 250. 5 Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). 6 FED. R. CIV. P. 56 (e). 7 Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 257. 8 Id., 477 U.S. at 255. Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 7 of 86 3 evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in the nonmovant’s favor.9 II. DEFENDANT PARTIES The Defendants in this case are: a) Defendant Raymond Trejo (“Trejo”) who is employed by the Texas Department of Public Safety in the capacity of a Registrar in the Sex Offender Registration Bureau of the Texas Department of Public Safety at Austin, Texas; b) Defendant Vincent Castilleja (“Castilleja”) who is employed by the Texas Department of Public Safety in the capacity of Manager of the Sex Offender Registration Bureau of the Texas Department of Public Safety at Austin, Texas; c) Defendant Steven McCraw (“McCraw”) who is the Director of the Texas Department of Public Safety; and, d) Defendant Kevin Phillips (“Phillips”) who is the Chief of Police of the City of Gainesville, Cooke County, Texas. With the exception of Defendant Phillips (who has unsuccessfully attempted to enter an appearance),10 each of the remaining Defendants (Defendants Trejo, Castilleja and McCraw), have entered an appearance in this cause. 11 No affirmative relief is sought by Plaintiff in this motion against Defendant Phillips. The remaining three Defendants, 9 Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 255. 10 Original Answer of Defendant Phillips (Dkt.#16)(stricken by Court on March 15, 2017, due to non- admission of counsel)). 11 Response of Defendants Trejo, Castilleja and McCraw, to Plaintiff’s First Amended Application for a Temporary Injunction (Dkt.#9). Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 8 of 86 4 who are all associated with the Texas Department of Public Safety (Defendants Trejo, Castilleja and McCraw), will hereinafter be referred to collectively as the “Defendants.” III. BASIS OF DEFENDANTS’ LIABILITY The Plaintiff seeks equitable relief against all Defendants pursuant to Title 42 U.S.C. Section 1983 (“Section 1983”). A state official in his or her official capacity, when sued for injunctive relief, is a “person” under Section 1983 because “official- capacity actions for prospective relief are not treated as actions against the State.” Will v. Michigan Department of State Police, 491 U.S. 58, 71 n. 10 (1989). Similarly, while prospective equitable relief may implicate State interests protected by the Eleventh Amendment, overriding federal constitutional interests, including prevention of future violations of federal statutory or constitutional law, authorize entry of prospective equitable relief notwithstanding the Eleventh Amendment. In other words, prospective equitable relief may be granted against State officials sued in their official capacities and even against a State itself. Edelman v. Jordan, 415 U.S. 651, 668 (1974); Milliken v. Bradley, 433 U.S. 267, 289 (1977); Quern v. Jordan, 440 U.S. 332, 337 (1979); and, Papasan v. Allain, 478 U.S. 265, 278 (1986). Like a permanent injunction, a declaratory judgment constitutes “prospective” equitable relief. Christian Legal Soc. Chapter of the Univ. of California v. Martinez, 561 U.S. 661, 676 n. 6 (2010). Section 1983 provides that persons acting under “color of law” may be restrained in “a suit in equity” when they engage in acts or omissions which “subject” another person, or “cause” another person “to be subjected,” to deprivation of a federal Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 9 of 86 5 constitutional right. The Plaintiff alleges that Defendants were acting (or failing to act) “under color of law” when engaging in the conduct about which Plaintiff complains. Whether a governmental official is sued in an official capacity, or in an individual capacity, prospective equitable relief may be granted under Section 1983 against a governmental official whose personal acts or omissions subjected or caused a person to be subjected to deprivation of a federal right. MCI Telecommunication Corp. v. Bell Atlantic-Pennsylvania, 271 F.3d 491, 506 (3rd Cir. 2001)(notwithstanding the Eleventh Amendment, “individual state officers can be sued in their individual capacities for prospective injunctive and declaratory relief to end continuing or ongoing violations of federal law.”); Orellana v. Kyle, 65 F.3d 29, 33 (5th Cir. 1995)(Neither absolute nor qualified immunity extends to suits for injunctive or declaratory relief.”). Under Section 1983, an action against a State official in his or her official capacity constitutes an action against the State itself. Hafer v. Melo, 502 U.S. 21, 25 (1991). Equitable relief against such a State official may be granted when a plaintiff: 1) proves a constitutional violation; 2) proves that the State official sued was a “policymaker”; 2) identifies an official “policy” or “custom having the force of law” for which the State official was responsible; and 3) establishes that the official “policy” or “custom” was a “moving force” behind or “cause” of the constitutional violation alleged. Peterson v. City of Fort Worth, Texas, 588 F.3d 838, 847 (5th Cir. 2009). The Plaintiff alleges she was deprived of procedural due process by Defendants under the Fourteenth Amendment in three ways. First, Plaintiff alleges Article 62.001(5)(E) of the Texas Code of Criminal Procedure (“Section 62.005(E)”) is unconstitutional “on its face,” as it authorizes State officials to designate persons to be Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 10 of 86 6 “sex offenders,” and it subjects them to sex offender registration and other adverse consequences affecting their liberty interests, predicated merely upon an “affirmative finding” of an alleged victim’s “age,” when they have never been convicted or placed on community supervision for a criminal offense which contains an element of sexual misconduct.12 Second, Plaintiff alleges that Section 62.005(E)(ii), as applied to her by Defendants, deprived her of procedural due process under the Fourteenth Amendment when Defendants designated or permitted her to be designated as a “sex offender,” and subjected her to sex offender registration and other adverse consequences affecting her liberty interests, without notice, an opportunity to be heard, and without an affirmative finding by a neutral and detached arbiter of fact that she currently poses a threat to the community by reason of a lack of sexual control, when she had never been convicted or placed on community supervision for a criminal offense which contains an element of sexual misconduct.13 Third, Plaintiff alleges that Section 62.005(E)(ii), as applied to her by Defendants, deprived her of procedural due process under the Fourteenth Amendment when Defendants designated or permitted her to be designated as a “sex offender,” and subjected her to sex offender registration and other adverse consequences affecting her liberty interests, without an “affirmative finding” of an alleged victim’s “age” by a judicial officer, when she had never been convicted or placed on community supervision for a criminal offense which contains an element of sexual misconduct.14 12 Plaintiff’s First Amended Complaint, pg. 5, ¶(H). 13 Plaintiff’s First Amended Complaint, pp. 5-6, ¶(I). 14 Plaintiff’s First Amended Complaint, pg. ¶(J). Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 11 of 86 7 Under Section 1983 an official “policy” of a governmental entity exists when a particular course of action (or inaction) has been set by the government’s lawmakers or by those whose acts or edicts may fairly be said to represent official policy. Jett v. Dallas Ind. School District, 491 U.S. 701, 737 (1989). Identification of the “policymaking official” whose policy is alleged to have caused a constitutional violation requires review of relevant legal materials, including state and local positive law, as well as custom or usage having the force of law, Flores v. Cameron County, Texas, 92 F.3d 258, 264 (5th Cir. 1996). Policymaking authority may be delegated to a subordinate by an official who possesses such authority, Flores v. Cameron County, Texas, supra, 92 F.3d at 263; and a widespread practice not authorized by written law or express policy may be deemed an official “policy” of a governmental entity if the practice is so permanent and well settled as to constitute a custom or usage with the force of law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-168 (1970); City of St. Louis v. Praprotnik, 485 U.S. 112, 126 (1988)(plurality opinion). Finally, a policymaker’s ratification or defense of his subordinate’s actions may also be sufficient to establish official policy or custom when an act or omission by the subordinate has violated “clearly established law.” World Wide Street Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 755 (5th Cir. 2009). With regard to the constitutional violations she has alleged above, Plaintiff contends the acts and omissions of Defendants violated, or caused a violation of, her constitutional right to procedural due process as established by Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004). The Plaintiff further alleges, as restated hereinafter,15 that the 15 Infra, this Motion, at pages 22-24. Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 12 of 86 8 acts and omissions about which Plaintiff complains were undertaken by Defendants or other State officials in accordance with official policy or custom for which Defendants Trejo, Castilleja and McCraw were responsible as policymakers; or were undertaken by Defendants Trejo and Casilleja in accordance with official policy or custom for which Defendant McCraw was responsible; and, that the official policy or custom alleged was the “cause” or “moving force” behind the deprivation of her right to procedural due process. IV. RELEVANT FACTS The Plaintiff has never been convicted of any criminal offense for engaging in any conduct defined under Texas law as a “Sex offense.” Nor has Plaintiff ever engaged in any conduct that could constitutionally classify her as a “Sex offender” under the laws of Texas, the laws of any other State, or under the laws of the United States.16 In the Spring of 2005, in the wake of the decision of the U.S. Court of Appeals for the Fifth Circuit in Coleman v. Dretke, 395 F.3d 216 (2004), the 79th Texas Legislature enacted House Bill 867 (“H.B.867”) for the purpose of “reenacting and amending” Chapter 62 of the Texas Code of Criminal Procedure.17 One amendment contained in H.B. 867 created what is now Article 62.001(5)(E) of the Texas Code of Criminal Procedure.18 Article 62.001(5)(E) currently provides the circumstances under which a person who has not been convicted or placed on community supervision for commission of the offense of “Unlawful Restraint” may nonetheless be deemed to have committed a 16 Affidavit of Plaintiff Angel Dawn Littlepage, page 1, appended hereto as Plaintiff’s Exhibit One (“Plaintiff’s Exhibit One.”). 17 Act of May 24, 2005, Tex. H.B 867, 79th Leg., R.S., ch. 1008, §1.01 (2005); 2005 Tex.Gen.Laws 3385. 18 2005 Tex.Gen.Laws, at 3386. Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 13 of 86 9 “reportable sex offense.” A person’s commission of a “reportable sex offense,” in turn, requires the person to register a “sex offender” under Article 62.051(a). In this connection, Article 62.001(5)(E) provides: “(5) ‘Reportable conviction or adjudication’ means a conviction or adjudication, including an adjudication of delinquent conduct or a deferred adjudication, that, regardless of the pendency of an appeal, is a conviction for or an adjudication for or based on: **** “(E) a violation of Section 20.02 (Unlawful restraint)…Penal Code, if…: “(i) the judgment in the case contains an affirmative finding under Article 42.015; or “(ii) the order in the hearing or the papers in the case contain an affirmative finding that the victim or intended victim was younger than 17 years of age[.]” (italics added) An “affirmative finding” under Article 42.015(a) of the Texas Code of Criminal Procedure is confined to a judicial determination that an alleged victim of an “unlawful restraint” under Texas Penal Code section 20.02 was under the age of 17. Thus, neither the “affirmative finding” under Article 62.001(5)(E) (i), nor Article 62.001(5)(E)(ii), require a determination of whether a person accused of committing the offense of “unlawful restraint” presents “a threat to society by reason of h[er] lack of sexual control.” Coleman v. Dretke, 395 F.3d 216, 225 (5th Cir. 2004). Article 62.102 provides that it is a felony offense for any person having a “reportable sex offense” under Texas law to fail to register as a “sex offender.” Persons to whom Article 62.102 applies are required to register as “sex offenders” with their “local law enforcement authority,” as defined by Article 62.001(1), not later than seven (7) days after arriving in and establishing a residence in a Texas municipality or unincorporated area of a county. Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 14 of 86 10 On February 12, 2012, Plaintiff was charged in a two-count indictment returned by a Denton County Grand Jury. The indicted alleged, under a “law of the parties” theory, that on or about November 19, 2011, by two separate means, Plaintiff, a then-20- year-old female, participated in the offense of Sexual Assault of a Child under Seventeen (17) years of age, which was committed by an adult, male, third-party. As alleged in the indictment this offense constituted a “reportable sex offense” under Article 62.001(5)(A).19 On May 10, 2012, Plaintiff’s entered a negotiated plea of guilty to the lesser “non-sexual” offense of “Unlawful Restraint” in violation of Texas Penal Code, Section 20.02(a) and (c)(2)(A) of Texas Penal Code (wherein “the actor recklessly exposes the victim to a substantial risk of serious bodily injury”). In exchange for her plea of guilty to that offense, Assistant Criminal District Attorney Matthew Shovlin of the Denton County Criminal District Attorney’s office recommended to the 362nd Judicial District Court of Denton County, Texas (wherein Plaintiff’s indictment was pending) that no “affirmative finding” of the victim’s age be made by the District Court under Article 42.015; and that no finding of Plaintiff’s guilt be entered by the District Court; and, that Plaintiff be placed on deferred adjudication community supervision for a period of five (5) years. The District Court accepted the recommendation of the Denton County Criminal District Attorney, by and through its Assistant Criminal District Attorney Matthew Shovlin, and entered an order in accordance with the aforementioned plea bargain agreement. No “sex offender” conditions of community supervision were imposed in the District Court’s order; the order of the District Court expressly stated on its face that “Sex Offender 19 A copy of this indictment is appended hereto as Plaintiff’s Exhibit Two. Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 15 of 86 11 Registration Requirements do not apply to the Defendant”; and, in a space on the order designed for insertion of the “Age of Victim,” the acronym “N/A” appears.20 In January of 2017, Plaintiff traveled to an office of the Texas Department of Public Safety in the City of Denton, Texas, to obtain an official, state-issued, personal identification card. After presenting her request to a service provider at the counter of the Department of Public Safety however, Plaintiff was approached by a uniformed State Trooper with the Texas Department of Public Safety and ushered into a private office. There, Plaintiff was informed by the Trooper that she was not eligible to receive a state- issued, personal identification card under Texas law because she was required, but had failed, to register as a Sex Offender under Chapter 62 of the Texas Code of Criminal Procedure.21 On or about January 25, 2017, Plaintiff went to her monthly appointment with her supervising probation officer, Kristin Navarro (“Navarro”), at the Denton County Adult Community Supervision Department in Denton, Texas (“DCACSD”). At this appointment Plaintiff reported to Navarro what the Trooper had stated about her not being eligible to acquire a Texas identification card because she was purportedly required to register as a sex offender.22 As a result of what Plaintiff reported to Navarro about her encounter with the Trooper, Navarro reported this information to her supervisor at the DCACSD, Tyler Miriam (“Miriam”).23 Miriam, in turn, reported this information about Plaintiff’s encounter with the Trooper to Brian Jones (“Jones”), who was one of several 20 A copy of the State District Court’s order is appended hereto as Plaintiff’s Exhibit Three. 21 Plaintiff’s Exhibit One, page 3 (Affidavit of Plaintiff Angel Dawn Littlepage). 22 Plaintiff’s Exhibit One, page 3 (Affidavit of Plaintiff Angel Dawn Littlepage). 23 Affidavit of Frances Thomas, page 2, appended hereto as Plaintiff’s Exhibit Four (“Plaintiff’s Exhibit Four”). Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 16 of 86 12 probation officers at DCACSD specially assigned to handle the “sex offender caseload.”24 The same day, January 25, 2017, at approximately 3:39 p.m., Jones emailed Defendant Trejo at the Sex Offender Registration Bureau of the Texas Department of Public Safety at Austin, Texas. Jones’ purpose in contacting Defendant Trejo was to determine whether Plaintiff was required to register as a sex offender under Texas law, and in this email Jones attached a copy of the indictment in Plaintiff’ case as well as a copy of the State District Court’s order which placed Plaintiff on community supervision.25 The following morning, January 26, 2017, Defendant Trejo replied to Jones’ inquiry by email and stated that he, Trejo, would “have another set of eyes or legal take a look at this to make [a] determination,” and that he would “get back with” Jones “soon.”26 On January 27, 2017, Defendant Trejo got back with Jones and answered Jones’ inquiry in an email which stated that “the Order of Deferred Adjudication and True Bill of Indictment with Cause Numbers and TRN provide sufficient black and white information to determine Registration,” and that “if [Plaintiff] resides in Texas she will have to register as Lifetime and verify on an annual basis.”27 Having received from Jones the erroneous determination of Defendant Trejo that Plaintiff was required to register as a sex offender, and would be required to do so “for Life” under Texas law, Miriam directed Navarro to schedule an appointment for Plaintiff with Russell Anderson (“Anderson”), another probation officer with the DCACSD. The 24 Plaintiff’s Exhibit Four, page 2 (Affidavit of Frances Thomas). 25 Plaintiff’s Exhibit Five, pages 2-3 (email correspondence between Jones and Defendant Trejo). As printed out, the sequence of the emails between Jones and Defendant Rejo, as contained in this exhibit, appear in reverse chronological order. 26 Plaintiff’s Exhibit Five, page 2 (email correspondence between Jones and Defendant Trejo). 27 Plaintiff’s Exhibit Five, page 1 (email correspondence between Jones and Defendant Trejo). Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 17 of 86 13 purpose of Plaintiff’s meeting with Anderson was to complete the initial paperwork required for Plaintiff to register as a sex offender. This appointment was scheduled for January 31, 2017, and Plaintiff appeared at this appointment as directed.28 When Plaintiff arrived at her meeting with Anderson on January 31, 2017, Anderson was still uncertain whether Plaintiff was legally required to register as a sex offender. As the result of this uncertainty, Anderson then emailed the Denton County Criminal District Attorney’s Office for legal advice concerning this question. Not receiving an immediate response to this email, Anderson informed Plaintiff that she was free to leave and that he would contact her once he had conferred with the Denton County Criminal District Attorney’s Office.29 On February 13, 2017, apparently concerned that Anderson had not initiated the registration process with Plaintiff on January 31, 2017, Miriam then assigned to Thomas Daniels (“Daniels”), a probation officer at DCACSD, the task of meeting with Plaintiff and completing the initial paperwork required for Plaintiff to register as a sex offender.30 On February 15, 2017, not having received a response to his email to the Denton County Criminal District Attorney’s Office on January 31, 2017, Anderson telephoned the District Attorney’s Office and left another message concerning this matter. The following day, on February 16, 2017, Anderson received an email from the Denton County Criminal District Attorney’s Office informing him that his legal question had been referred to Matthew Shovlin (“Shovlin”), the Assistant Denton County Criminal 28 Plaintiff’s Exhibit Four, page 2 (Affidavit of Frances Thomas). 29 Plaintiff’s Exhibit Four, page 2-3 (Affidavit of Frances Thomas). 30 Plaintiff’s Exhibit Four, page 3 (Affidavit of Frances Thomas); Affidavit of Thomas Daniels, 2, appended hereto as Plaintiff’s Exhibit Six (“Plaintiff’s Exhibit Six”). Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 18 of 86 14 District Attorney who had negotiated, and participated in, Plaintiff’s plea before the State District Court in May of 2012.31 At some point later in the day on February 16, 2017, without having communicated with Shovlin in the interim, officials at the DCACSD concluded that they “had a legal obligation to require [Plaintiff] to register” based on the legal determination they had received from Defendant Trejo and Plaintiff’s own report of her encounter with the Trooper at the Texas Department of Public Safety.32 Later on February 16, 2017, Daniels received an email from Navarro stating that Plaintiff had been notified to meet with him the following day, February 17, 2017, to complete the initial paperwork required for Plaintiff to register.33 Upon examining the State District Court’s order on February 16, 2017, Daniels himself became concerned that requiring Plaintiff to register as a sex offender would directly conflict with the literal terms of the State District Court’s order. Based on this concern, Daniels contacted his direct supervisor at DCACSD, Rhett Wallace (“Wallace”). When contacted by Daniels, Wallace stated he would discuss the matter further with Thomas and Miriam. Apparently after speaking with Thomas and/or Miriam, Wallace later the same day personally informed Daniels “that DPS had reviewed the situation and [had] directly instructed [DCACSD] to complete the sex offender registration on [Plaintiff].”34 31 Plaintiff’s Exhibit Four, pages 2-3 (Affidavit of Frances Thomas). 32 Plaintiff’s Exhibit Four, page 3 (Affidavit of Frances Thomas). 33 Plaintiff’s Exhibit Six, page 2 (Affidavit of Thomas Daniels). 34 Plaintiff’s Exhibit Six, page 2 (Affidavit of Thomas Daniels). Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 19 of 86 15 On February 17, 2017, Daniels met personally with Plaintiff and informed her that she was required to register as a “sex offender.”35 Daniels further directed Plaintiff to complete, initial and sign a pre-printed document entitled “Pre-Release Notification Form-Texas Sex Offender Registration Program” (“Form CR-32”).36 Additionally, Daniels directed Plaintiff to complete and sign a second form known as a “Verification” form (“Form CR-35”), which is a necessary second step towards completion of the sex offender registration process.37 The Plaintiff, while in Daniel’s office, was afforded with and took advantage of an opportunity to speak briefly by telephone with her former defense counsel, Meyer, who had negotiated her plea bargain agreement approximately four and one-half years earlier.38 Ultimately however, while under fear that her community supervision might be revoked (or “adjudicated”), and while under fear that she would be arrested, indicted and convicted of a felony offense should she decline to do so, Plaintiff completed, signed, and initial these forms involuntarily as directed by Daniels.39 The pre-printed document entitled “Pre-Release Notification Form-Texas Sex Offender Registration Program” mentioned above, which Plaintiff was required to sign involuntarily on February 17, 2017, notified Plaintiff that she was required, under threat of prosecution for a felony offense, to personally appear within seven (7) days at her “Local Law Enforcement Authority,” i.e., the City of Gainesville Police Department, to 35 Plaintiff’s Exhibit Six, page 2 (Affidavit of Thomas Daniels). 36 See, Pre-Release Notification Form-Texas Sex Offender Registration Program (“Form CR-32”), appended hereto as Plaintiff’s Exhibit Seven (“Plaintiff’s Exhibit Seven”); Plaintiff’s Exhibit Six, page 2 (Affidavit of Thomas Daniels). 37 See, Sex Offender Verification (“Form CR-35”), appended hereto as Plaintiff’s Exhibit Eight (“Plaintiff’s Exhibit Eight”); Plaintiff’s Exhibit Six, page 2 (Affidavit of Thomas Daniels). 38 Plaintiff’s Exhibit Six, pages 2-3 (Affidavit of Thomas Daniels). 39 Plaintiff’s Exhibit Six, page 3 (Affidavit of Thomas Daniels); Plaintiff’s Exhibit One, page 4 (Affidavit of Plaintiff Angel Dawn Littlepage). Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 20 of 86 16 complete her sex offender registration.40 The seven (7) day deadline for Plaintiff to complete her registration as a “sex offender” with the City of Gainesville Police Department expired on February 24, 2017. Since that time, Plaintiff, on the advice of undersigned counsel, has declined to complete her registration as a “sex offender” with the City of Gainesville Police Department. In conformity protocol required under Texas law, shortly after securing execution of the aforementioned documents by Plaintiff, Daniels transmitted a copy of each document to Defendant Trejo at the Texas Sex Offender Registration Bureau in Austin, Texas, as well as to Susan Case with the Gainesville, Texas, Police Department (“Officer Case”).41 Officer Case is a Special Assistant to Defendant Chief of Police Kevin Phillips, and is in charge of sex offender registration for persons who are residents of Gainesville, Texas, and to whom Chapter 62 applies. On March 1, 2017, after being retained by Plaintiff, undersigned counsel consecutively communicated with Thomas Daniels; Frances Thomas; Susan Case; Lauri Frohbieter (an Assistant Denton County Criminal District Attorney’s Office); and, finally, Defendant Trejo. When discussing this matter with Daniels, Thomas, Case and Frohbieter, each expressed to undersigned counsel, in varying degrees, their own skepticism that the legal advice given to them (directly or indirectly) by Defendant Trejo, a layperson, was legally competent.42 40 Plaintiff’s Exhibit Seven, page 1 (Pre-Release Notification Form-Texas Sex Offender Registration Program [“Form CR-32”]), 41 Plaintiff’s Exhibit Six, page 3 (Affidavit of Thomas Daniels). 42 Plaintiff’s Verified First Amended Application for a Temporary Restraining Order and Preliminary Injunction, page 7 (Dkt.#6). Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 21 of 86 17 When, on March 1, 2017, undersigned counsel discussed this matter by telephone directly with Defendant Trejo, Defendant Trejo adhered to his prior conclusion that Plaintiff is required to register as a sex offender, but expressed no knowledge whatsoever of the Fifth Circuit’s decisions in Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004) or Meza v. Livingston, 607 F.3d 392 (5th Cir. 2010). Undersigned counsel then promptly emailed Defendant Trejo a copy of each of these decisions and suggested that Defendant Trejo seek the legal opinion of Mr. Bruce Garcia, an Assistant Texas Attorney General with whom undersigned counsel has exhaustively litigated this procedural due process issue in the U.S. District Court for the Western District of Texas, Austin Division. Rejecting this suggestion, Defendant Trejo instead expressed his intention to seek the legal opinion of Jeanine Hudson (“Hudson”), an “in-house counsel” for the Sex Offender Registration Bureau of the Texas Department of Public Safety at Austin, Texas.43 Shortly after 9:00 a.m. the following day, March 2, 2017, undersigned counsel received an email from Hudson concerning this matter. In her email Hudson stated that she had read the Fifth Circuit’s decisions in Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004), and in Meza v. Livingston, 607 F.3d 392 (5th Cir. 2010), and further stated in her email as follows: “I am the attorney that advises the DPS Sex Offender Registration Bureau. I have reviewed the cases you sent, and they both appear to reference probation or parole conditions being placed on the offender that require registration without proper due process. If my understanding is correct, Ms. Littlepage received deferred adjudication for Unlawful Restraint, and the papers in the case confirm that the victim was under 17. Chapter 62 requires registration for that offense (CCP 62.001(5)(E)). Therefore, registration is not required as a condition of her parole/probation in which case a Coleman hearing would be necessary since the opportunity to protest registration was unavailable during the hearing for the criminal 43 Plaintiff’s Verified First Amended Application for a Temporary Restraining Order and Preliminary Injunction, page 7 (Dkt.#6). Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 22 of 86 18 offense. Rather, registration is required by statute because of conviction for that particular offense and her original criminal hearing afforded the proper due process for registration.”44 Upon reading the above email from Hudson, undersigned counsel took the liberty to personally telephone Hudson to discuss this matter further with her. After attending to other pressing matters, undersigned counsel personally spoke with Hudson by telephone at approximately 1:40 p.m. on March 2, 2017. Counsel for Plaintiff asked Hudson whether she had discussed this matter with Assistant Texas Attorney General Bruce Garcia, as Plaintiff’s counsel had suggested to Defendant Trejo earlier on March 1, 2017. In response Hudson replied that she had not contacted Mr. Garcia, but that she had personally discussed the matter with Celamaine Cunniff (“Cunniff”), another Assistant Texas Attorney General assigned to the Law enforcement Division of that office. To undersigned counsel’s utter astonishment, Hudson reported that Cunniff had confirmed the validity of Hudson’s legal opinion, and had advised Hudson that the legal opinion expressed in Hudson’s email to Plaintiff’s counsel, as quoted above, had validly determined that the procedural due process requirements stated in the Coleman and Meza decisions are “inapplicable” to Plaintiff.45 Specially, Hudson informed Plaintiff’s counsel that an original “indictment” constitutes a “paper in the case” within the meaning of Article 62.001(5)(E)(ii), and that an original indictment alone, notwithstanding later proceedings in a case, constitutes “an affirmative finding that the victim or intended victim was younger than 17 years of age” within the meaning of Article 62.001(5)(E)(ii). On further questioning by Plaintiff’s counsel, Hudson expressly stated that her legal 44 Plaintiff’s Verified First Amended Application for a Temporary Restraining Order and Preliminary Injunction, page 8 (Dkt.#6). 45 Plaintiff’s Verified First Amended Application for a Temporary Restraining Order and Preliminary Injunction, pages 8-9 (Dkt.#6). Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 23 of 86 19 opinion, as so stated, constitutes the “official policy” of the Sex Offender Registration Bureau of the Texas Department of Public Safety.46 After concluding the foregoing fruitless discussion with Hudson, Plaintiff’s counsel traveled to the Denton County Criminal District Attorney’s Office, hoping its intervention with Hudson might alter Hudson’s “legal” opinion. There, Plaintiff’s counsel met with Assistant Denton County Criminal District Attorney Matthew Shovlin (“Shovlin”). Mr. Shovlin is presently assigned to the Civil Section of the District Attorney’s Office but was the prosecutor who personally negotiated, recommended and signed the plea bargain offer which Plaintiff accepted in May of 2012, and which the State District Court approved at that time. Joining the legal opinion of Plaintiff’s counsel that no sex offender registration could constitutionally be imposed on Plaintiff in light of Coleman v. Dretke, later in the day on March 2, 2017, Shovlin sent Plaintiff’s counsel an email which stated in part: “I spoke with Ms. Hudson at DPS and told her my intent with the plea and my continuing desire that Ms. Littlepage not be required to register. I have also notified the probation department (Frances Thomas) and advised her to request that DPS rescind the paperwork that was sent down to them and that Ms. Littlepage not be required to register.”47 In response to the advice given to her by Shovlin on March 2, 2017, during business hours on March 3, 2017, Thomas emailed Defendant Trejo and informed him that DCACSD was rescinding the paperwork concerning Plaintiff.48 46 Plaintiff’s Verified First Amended Application for a Temporary Restraining Order and Preliminary Injunction, page 9 (Dkt.#6). 47 Plaintiff’s Verified First Amended Application for a Temporary Restraining Order and Preliminary Injunction, pages 9-10 (Dkt.#6). 48 Plaintiff’s Exhibit Four, page 3 (Affidavit of Frances Thomas). Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 24 of 86 20 Earlier on the morning of March 2, 2017, Plaintiff’s counsel examined the publicly accessible, computerized “sex offender database” maintained by the Texas Department of Public Safety. At that time, Plaintiff’s counsel was relieved to discover that Plaintiff had not been publicly broadcast as a “sex offender” at that time. However, at approximately 7:00 p.m. on March 2, 2017, Plaintiff’s counsel again checked the publicly accessible, computerized “sex offender database” maintained by the Texas Department of Public Safety, and discovered, for the first time, that Defendant Trejo, presumably in reliance on the erroneous legal advice of Hudson, had publicly broadcast and posted an entry officially designating Plaintiff as a “sex offender,” along with a photograph of Plaintiff and a listing of Plaintiff’s residential address in Gainesville. A print-out of this online record, which designated Plaintiff as a “sex offender,” is appended hereto.49 In compliance with the temporary restraining order granted by the Court on March 3, 2017, this entry on the State’s online “sex offender database” has been removed. When Plaintiff’s counsel contacted the Gainesville Police Department on March 1, 2017, he was informed by Susan Case, the Special Assistant to Defendant Chief Phillips who is in charge of sex offender registration in Gainesville, that one or more investigators with the Gainesville Police Department were proceeding with their intent to investigate and, if appropriate, arrest and prosecute Plaintiff for “failure to register” in violation of Chapter 62. Thus, prior to entry of interim equitable relief by this Court on March 3, 2017 (temporary restraining order, Dkt.# 7), and thereafter on March 7, 2017 49 See, Print-Out from the Texas Department of Public Safety-TxDPS Online Sex Offender Registry (retrieved March 2, 2017), appended hereto as Plaintiff’s Exhibit Nine (“Plaintiff’s Exhibit Nine”). Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 25 of 86 21 (preliminary injunction, Dkt.# 13), Plaintiff remained in imminent fear of arrest and confinement by the Gainesville Police Department, and in fear of her indictment and potential erroneous conviction by the Cooke County District Attorney’s office, all due to her unconstitutional designation as a “sex offender” by Defendant Trejo, Hudson, and the Sex Offender Registration Bureau of the Texas Department of Public Safety. Due to her unconstitutional designation as a “sex offender” by Defendant Trejo, Hudson, and the Sex Offender Registration Bureau of the Texas Department of Public Safety, Plaintiff is, and for the foreseeable future will also be (without the declaratory and permanent injunction relief she seeks), unconstitutionally subjected to the “stigma” and “other adverse consequences” caused by her being falsely labeled a “sex offender,” as described in Coleman v. Dretke, supra, 395 F.3d at 223 n. 7. Due to her unconstitutional designation as a “sex offender” by Defendant Trejo, Hudson, and the Sex Offender Registration Bureau of the Texas Department of Public Safety, Plaintiff is, and for the foreseeable future will be (without the declaratory and permanent injunction relief she seeks), unconstitutionally subjected to citation or arrest for violation of two ordinances enacted by the City of Gainesville, Texas. The first ordinance, Article VI, Section 13-131 of the Gainesville City Ordinance Code, prohibits persons who are “required to register on the Texas Department of Public Safety’s Sex Offender Database (the ‘database’) because of a violation involving a victim who was a minor,” from “establish[ing] a permanent residence or temporary residence in the city [of Gainesville] within two thousand (2,000) feet of any premises where children commonly gather.”50 The second ordinance, Article VI, Section 14-11 of the Gainesville City 50 Plaintiff’s Exhibit Ten (Article VI, Section 13-131, Gainesville City Ordinance Code). Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 26 of 86 22 Ordinance Code, prohibits persons who are “required to register as a child sex offender… pursuant V.T.C.A., Code of Criminal Procedure ch. 62” from “knowingly loiter[ing] on a public way within three hundred (300) feet of a city park.”51 The Plaintiff presently lives in a residence in the City of Gainesville, Texas, that is “within two thousand (2,000) feet of [a] premises where children commonly gather.” Additionally, Plaintiff has in the past, and intends “knowingly” in the future, to “loiter” at will on “public way[s]” within “three hundred (300) feet of” Gainesville City Parks. On March 7, 2017, without opposition from Defendants, the Court adopted the findings stated in the prior temporary restraining order (DKT.#7), and granted Plaintiff’s request for a preliminary injunction. Further, the Court’s preliminary injunction provided that that the relief previously granted to Plaintiff in the temporary restraining order would remain in effect until further order of the Court. (Dkt.# 13). V. PLAINTIFF’S GROUNDS FOR SUMMARY JUDGMENT, AND RELIEF REQUESTED In this motion Plaintiff does not seek any affirmative relief against Defendant Phillips. The Plaintiff does however seek affirmative relief against Defendants Trejo, Castilleja and McCraw. In this connection, the grounds in support of this motion for summary judgment and the nature of relief requested by Plaintiff are: A) That Article 62.001(5)(E) of the Texas Code of Criminal Procedure, “on its face” and as applied to Plaintiff, is unconstitutional and violated Plaintiff’s constitutional right to procedural due process guaranteed by the Fourteenth Amendment to the U.S. Constitution; 51 Plaintiff’s Exhibit Eleven (Article VI, Section 14-11, Gainesville City Ordinance Code). Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 27 of 86 23 B) That Defendants Raymond Trejo, Vincent Castilleja and Steven McCraw, in their official capacities, under color of law, and pursuant to official policy of the Texas Department of Public Safety, subjected Plaintiff or caused Plaintiff to be subjected, under Title 42 U.S.C. Section 1983, to a deprivation of her constitutional right to procedural due process guaranteed by the Fourteenth Amendment to the U.S. Constitution, as the result of Plaintiff being officially designated as a “sex offender,” and by placement of Plaintiff’s name, address, photograph, date of birth, or other information identifying Plaintiff as a “sex offender,” onto the online, publicly accessible “computerized central database” maintained by the Texas Department of Public Safety as defined by Article 62.005 of the Texas Code of Criminal Procedure; C) That Plaintiff is entitled to a Declaratory Judgment (under 28 U.S.C. §2201) which declares that, as applied to Plaintiff, Article 62.001(5)(E) of the Texas Code of Criminal Procedure violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution because it unconstitutionally authorized Plaintiff to be officially designated as a “sex offender,” and because it authorized placement of Plaintiff’s name, address, photograph, date of birth, or other information identifying Plaintiff as a “sex offender,” onto the online, publicly accessible “computerized central database” maintained by the Texas Department of Public Safety as defined by Article 62.005 of the Texas Code of Criminal Procedure, when Plaintiff had never been convicted or placed on community supervision for a criminal offense which contains an element of sexual misconduct, and Plaintiff had not first been provided with the procedural due process protections required by Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004) and Meza v. Livingston, 607 F.3d 392 (5th Cir. 2010); Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 28 of 86 24 D) That Plaintiff is entitled to a permanent mandatory injunction (under 28 U.S.C. §1343) compelling Defendants Trejo, Castilleja and McCraw to refrain from entering Plaintiff’s name, address, photograph, date of birth, or any other information identifying Plaintiff as a “sex offender,” onto the online, publicly accessible “computerized central database” maintained by the Texas Department of Public Safety as defined by Article 62.005 of the Texas Code of Criminal Procedure, unless and until Plaintiff has been convicted or placed on community supervision for a criminal offense which contains an element of sexual misconduct, or unless and until Plaintiff has been provided with the procedural due process protections and the “affirmative finding” required by Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004) and Meza v. Livingston, 607 F.3d 392 (5th Cir. 2010) has been made; E) That in addition to the permanent injunction (under 28 U.S.C. §1343) described in the preceding paragraph, Plaintiff is entitled to a permanent injunction prohibiting all Defendants, their agents, successors, assigns, or anyone acting in concert with them, from engaging in any actions intended for the purpose, or likely to cause, interference with the Plaintiff’s constitutionally protected liberty interests under the Fourteenth Amendment, unless and until, in the course of providing Plaintiff with the procedural safeguards articulated in Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004) and Meza v. Livingston, 607 F.3d 392 (5th Cir. 2010), an official, affirmative finding of a neutral and detached arbiter of fact has been made by “clear and convincing evidence” that Plaintiff does pose a threat to the community by reason of a lack of sexual control; Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 29 of 86 25 F) That Plaintiff is entitled to an award of nominal damages (under 42 U.S.C. §1983), against Defendants Trejo, Castilleja and McCraw, for their violations of Plaintiff’s constitutional right to procedural due process alleged herein; and, G) That Plaintiff is entitled to an award of her reasonable costs and reasonable attorney’s fees (under 42 U.S.C. §1988), against Defendants Trejo, Castilleja and McCraw, which are shown to have been reasonably and necessarily incurred by Plaintiff in prosecuting this matter. VI. ARGUMENT A) The Constitutional Merits. As observed in this Court’s order granting Plaintiff’s application for a temporary restraining order (Dkt.#7, page 4), the Fifth Circuit’s decisions in Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004) and Meza v. Livingston, 607 F.3d 392 (5th Cir. 2010) establish that a “sex offender registration requirement” generally may not be imposed on a person who has never before been convicted of or placed on community supervision for commission of a “sex offense” under the laws of Texas, under the laws of any other State, or under the laws of the United States, for any “sex offense.” An exception to that general constitutional rule, however, permits imposition of a sex offender registration requirement if such a person is first provided, before imposition of that requirement, with the procedural due process protections described in Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004) and Meza v. Livingston, 607 F.3d 392 (5th Cir. 2010). Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 30 of 86 26 The Plaintiff has executed and submitted to the Court for its consideration an affidavit affirming that: 1) she has never before been convicted or placed on any form of community supervision under the laws of Texas, under the laws of any other State, or under the laws of the United States, for any “sex offense”; and 2) that she has never been provided with a hearing, by Defendants or any other governmental authorities, in accord with the procedural due process protections described in Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004) and Meza v. Livingston, 607 F.3d 392 (5th Cir. 2010).52 B) The Defendants’ Contentions. In a response filed shortly before the hearing of Plaintiff application for a preliminary injunction on March 7, 2017 (Dkt.#9), Defendants Trejo, Castilleja and McCraw (hereinafter the “Department Defendants”) interposed four (4) arguments contending that Plaintiff is not entitled to relief on the merits. The Plaintiff in this motion will assume Defendants adhere to those earlier contentions. First, Department Defendants contend that under “SORA” (which Plaintiff presumes refers to the Texas “Sex Offender Registration Act,” Chapter 62, Texas Code of Criminal Procedure), they have “no authority to determine whether an individual has a ‘reportable conviction’ for a Texas offense.”53 However, Defendants do not deny that: 1) Defendant Trejo did make an independent determination that Plaintiff was required to register as a sex offender under Texas law;54 2) that Defendant Trejo transmitted that determination of his own to DCACSD;55 52 Plaintiff’s Exhibit One, page 1 (Affidavit of Plaintiff Angel Dawn Littlepage). 53 Dept. Def.’s Resp. to Pltfs.’ First Amended App. for Preliminary Injunction, p. 4 (Dkt.#9). 54 Plaintiff’s evidence that Defendant Trejo did make such an independent determination includes Plaintiff’s Exhibits Four, Five and Six. 55 Plaintiff’s evidence that Defendant Trejo did transmit that determination of his own to DCACSD includes Plaintiff’s Exhibits Four, Five and Six. Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 31 of 86 27 3) that Defendant Trejo’s transmission of that determination to DCACSD caused DCACSD to require Plaintiff to register as a sex offender involuntarily;56 4) that Defendant Trejo’s transmission of that determination to DCACSD, putatively ultra vires of Texas “Sex Offender Registration Act,” was authorized by “official policy” of the Texas Sex Offender Registration Bureau;57 or that, 5) Article 62.001(5)(E) of the Texas Code of Criminal Procedure, as applied to Plaintiff, is unconstitutional and violated Plaintiff’s constitutional right to procedural due process under the Fourteenth Amendment to the U.S. Constitution. Nor do Departments Defendants deny that Defendant Trejo’s conduct when officially designating Plaintiff as a “sex offender,” or that the act which placed Plaintiff’s name, address, photograph, and date of birth on the publicly accessible, computerized “sex offender database” maintained by the Texas Department of Public Safety, was authorized by official policy of the Texas Department of Public Safety and its Sex Offender Registration Bureau. Secondly, Defendants contend that Plaintiff is not entitled to relief on the merits on the ground that “the Order of Deferred Adjudication for Plaintiff Littlepage lists two reportable offenses under SORA,” that is, “two counts of sexual assault, pursuant to Texas Penal Code §22.011.”58 The State District Court’s order, of course, “lists” no such thing.59 56 Plaintiff’s evidence that Defendant Trejo’s transmission to DCACSD caused DCACSD to require Plaintiff to register as a sex offender involuntarily includes Plaintiff’s Exhibits Four and Six. 57 Plaintiff’s Verified First Amended Application for a Temporary Restraining Order and Preliminary Injunction, page 9 (Dkt.#6)(affirming that Jeanine Hudson, “in-house counsel” for the Sex Offender Registration Bureau, confirmed this to be official policy on March 2, 2017). 58 Dept. Def.’s Resp. to Pltfs.’ First Amended App. for Preliminary Injunction, pp. 5-6 (Dkt.#9). 59 See, Plaintiff’s Exhibit Three (State Court Order Granting Plaintiff Community Supervision). Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 32 of 86 28 Thirdly, as a matter of statutory interpretation, Defendants contend that solely as the result of the Grand Jury indictment in this case, which alleged “two counts of sexual assault pursuant to Texas Penal Code §22.011,”60 the “papers in the case contain an affirmative finding that the victim or intended victim was younger than 17 years of age” within the meaning of Article 62.001(5)(E)(ii) of the Texas Code of Criminal Procedure. On this basis Defendants contend that Plaintiff engaged in conduct that constitutes a “reportable sex offense” as defined by Article 62.001(5)(E)(ii); and that Defendant were (and are) therefore excused from compliance with the constitutionally mandated procedural due process requirements described in Coleman v. Dretke and Meza v. Livingston, supra. Purely as a matter of federal constitutional law, and for the reasons set out by this Court in its order granting Plaintiff’s application for a Temporary Restraining Order (Dkt.#7, p. 4), the return of a Grand Jury indictment alone does not afford either the process or “finding” required under the Due Process Clause of the Fourteenth Amendment as mandated by Coleman v. Dretke and Meza v. Livingston, supra. More directly dispositive of the constitutional question presented in this case is the fact that neither the “affirmative finding” under Article 62.001(5)(E) (i), nor the “affirmative finding” under Article 62.001(5)(E)(ii), require a determination of whether a person accused of committing the offense of “unlawful restraint” presents “a threat to society by reason of h[er] lack of sexual control.” Coleman v. Dretke, 395 F.3d 216, 225 (5th Cir. 2004). Like the “affirmative finding” in Article 62.001(5)(E)(ii), the “affirmative finding” under Article 42.015(a) of the Texas Code of Criminal Procedure (which Article 62.001(5)(E) (i) references) is confined merely to a judicial determination that an alleged 60 Dept. Def.’s Resp. to Pltfs.’ First Amended App. for Preliminary Injunction, p. 6 (Dkt.#9). Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 33 of 86 29 victim of an “unlawful restraint” under Texas Penal Code Section 20.02 was under the age of 17.61 Fourth, and finally, Defendants contend that because “the Order of Deferred Adjudication lists two reportable convictions under SORA,” the 362nd State Judicial District Court of Denton County, Texas, should be ordered to enter a nunc pro tunc order which satisfies the Department Defendants that Plaintiff is not required to register under Article 62.001(5)(E)(ii) of the Texas Code of Criminal Procedure. In addition to demonstrating a not inconsiderable amount of “hutzpa,” Defendants’ contention under this argument is premised on an erroneous factual basis; distorts the definition of what is and isn’t a “reportable sex offense” under Article 62.001(5)(E)(ii); and, at last, is not legally permissible under Texas law. The Plaintiff will address each of Defendants’ contentions seriatim. At the outset, as previously noted, “the Order of Deferred Adjudication for Plaintiff Littlepage” does not “lis[t] two reportable offenses under SORA,” as Department Defendants contend.62 Furthermore, whether conduct does or does not constitute a “reportable sex offense” under Article 62.001(5)(E)(ii) does not depend on whether a particular offense is “listed” somewhere in the “papers in the case.” Rather, under Article 62.001(5)(E)(ii), whether a person’s placement on community supervision for commission of the offense of “Unlawful Restraint” constitutes a “reportable sex offense” under Texas law depends on whether “the papers in the case contain an affirmative finding that the victim or 61 Some Members of the Texas Court of Criminal Appeals have questioned the wisdom of the Texas legislature’s decision to unqualifiedly require all parents who have “unlawfully restrained” or “abducted” their own minor children to register as “sex offenders.” Dewalt v. State, 426 S.W.3d 100 (Tex.Crim.App.2014)(Cochran, J., joined by Johnson, J., concurring on denial of petition for discretionary review). 62 See, Plaintiff’s Exhibit Three (State Court Order Granting Plaintiff Community Supervision). Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 34 of 86 30 intended victim was younger than 17 years of age.” Ibid. (italics added). The State District Court’s order does not include such an “affirmative finding,” and a nunc pro tunc order entered by the State District Court would not make that any more transparent. Furthermore, Texas law obviously does not permit a State District Court to modify a Grand Jury indictment via a nunc pro tunc order. Lastly, under the circumstances in the present case, Texas law would not authorize a State District Court to modify an original order placing a person on community supervision, four and a half years after the fact (or otherwise), in a manner that alters the offense for which the person was intentionally placed on community supervision. The Department Defendants concede that the State District Court, the Prosecutor, and Plaintiff’s criminal defense counsel, “all intended that Plaintiff not be required to register under SORA” when the order was signed by all and entered into the record.63 The order itself manifests no ambiguity of the Court’s or the parties’ intentions on that point, and there is no “clerical mistake” on the face of the order that obscures or contradicts the mutual intention of all that “Plaintiff not be required to register under SORA.” As explained by the Texas Court of Criminal Appeals in Ex Parte Poe, 751 S.W.2d 873, 876 (1988)(internal citations omitted), under Texas law… “The purpose of a nunc pro tunc order is to correctly reflect from the records of the court a judgment actually made by it, but which for some reason was not entered of record at the proper time. A judgment may be reformed so as to show the offense of which the accused was found guilty by a court and jury[,]… [and] [a] nunc pro tunc order may correct clerical errors in a judgment, but not judicial omissions. A clerical error is one which does not result from judicial reasoning or determination.” 63 Dept. Def.’s Resp. to Pltfs.’ First Amended App. for Preliminary Injunction, p. 6 (Dkt.#9). Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 35 of 86 31 In short, the State District Court’s order placing Plaintiff on community supervision does “correctly reflect from the records of the court a judgment actually made by it”; there was no “judicial omission” in the State District Court’s order; and there is no “clerical error” in the order, and the State District Court’s “judicial determination” that Plaintiff not be required to register as a sex offender cannot be classified as a “clerical error.” Entry of a nunc prop tunc order at this late date, solely for the purpose of satisfying Defendants that Plaintiff is not required to register under Article 62.001(5)(E)(ii), is simply not legally permissible under Texas law. C) Equitable Relief under Title 42 U.S. C. Section 1983. As previously stated, Section 1983 provides that persons acting under “color of law” may be restrained in “a suit in equity” when they engage in acts or omissions which “subject” another person, or “cause” another person “to be subjected,” to deprivation of a federal constitutional right. The Plaintiff alleges that Defendant Trejo, while acting under “color of law,” directly “subjected” Plaintiff to a deprivation of her constitutional right to procedural due process under the Fourteenth Amendment in accordance with official policy of the Sex Offender Registration Bureau of the Texas Department of Public Safety. The Plaintiff further alleges that Defendant Castilleja, as “official policymaker” for and manager of the Sex Offender Registration Bureau of the Texas Department of Public Safety, or when taking action in accordance with policy of the Sex Offender Registration Bureau of the Texas Department of Public Safety, and while acting under “color of law,” “caused” Plaintiff “to be subjected” Plaintiff to a deprivation of her constitutional right to procedural due process under the Fourteenth Amendment. Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 36 of 86 32 Finally, Plaintiff alleges that Defendant McCraw, as “official policymaker” for the Texas Department of Public Safety as a whole, and more specifically as “official policymaker” for the Crime Records Division as well as the Sex Offender Registration Bureau of the Texas Department of Public Safety, and while acting under “color of law,” “caused” Plaintiff “to be subjected” to the deprivation of her constitutional right to procedural due process under the Fourteenth Amendment. D) Declaratory Relief. The equitable considerations that precede entry of a declaratory judgment are not controlled by the same considerations attendant to entry of a permanent injunction. Unlike the grant of a permanent injunction pursuant to Title 28 U.S.C. Section 1343, the Declaratory Judgment Act of Title 28 U.S.C. Section 2201 confers remedial discretion that must be liberally exercised to effectuate the purposes of Section 2201. In a decision concerning the Due Process rights of a “sex offender,” the Court in Williams v. Ballard, 2004 WL 1499457, *10 (June 18, 2004), recommendation adopted, 2004 WL 2203250 (N.D.Tex., Sept. 30, 2004)(unpublished), described the availability of declaratory relief, even when injunctive relief was unavailable, as follows: “A district court should normally entertain a declaratory judgment action within its jurisdiction when it finds that the relief sought: (1) will serve a useful purpose in clarifying and settling the legal relations in issue; and (2) will terminate and afford relief from uncertainty, insecurity, and controversy giving rise to the proceeding.” While the Plaintiff asserts hereinafter that a permanent injunction in this case is the only means by which the Defendants can be compelled to respect the constitutional decisions of the Federal Courts in this context; under the foregoing criteria Plaintiff’s case certainly warrants, at a minimum, the issuance of a declaratory judgment in Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 37 of 86 33 Plaintiff’s favor. The record reflects a persistent and enduring policy of the Department Defendants to enforce Article 62.001(5)(E) of the Texas Code of Criminal Procedure in a manner that requires Plaintiff (and others similarly situated) to register as a “sex offender” notwithstanding the Fifth Circuit’s decisions in Coleman v. Dretke and Meza v. Livingston, supra. It is necessary, and indeed essential, that the Court declare the rights of the Parties in this case. The Defendants have demonstrated that even a decade after the binding judicial decisions in Coleman v. Dretke and Meza v. Livingston, supra, they are institutionally incapable of bringing themselves into compliance with settled constitutional law without this Court’s intervention. E) General, Permanent Injunctive Relief. The Plaintiff requests permanent injunctive relief (under 28 U.S.C. §1343) prohibiting all Defendants, their agents, successors, assigns, or anyone acting in concert with them, from engaging in any actions intended for the purpose, or likely to cause, interference with the Plaintiff’s constitutionally protected liberty interests under the Fourteenth Amendment, unless and until Plaintiff is first provided the procedural safeguards articulated in Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004) and Meza v. Livingston, 607 F.3d 392 (5th Cir. 2010).64 The Plaintiff would respectfully submit again that in view of the official, persistent and enduring policy of the Department Defendants to enforce Article 62.001(5)(E) of the Texas Code of Criminal Procedure in a manner that requires Plaintiff (and others similarly situated) to register as a “sex offender” (notwithstanding settled law as stated in Coleman v. Dretke and Meza v. Livingston, supra), there is no fair assurance that the Department Defendants will yield to a mere 64 The specific injunctive relief sought by Plaintiff is described in greater detail in this motion, supra, at pages 23-24; and in the proposed order that accompanies the filing of this motion. Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 38 of 86 34 declaration of this Court that declares their officials policy, as described herein, unconstitutional. F) Additional, and More Specific, Permanent Injunctive Relief (the “Clear and Convincing Evidence Requirement”). At the hearing on Plaintiff’s preliminary injunction Counsel for Department Defendants intimated that, should the Court determine Plaintiff’s case is a “Coleman case,” they may seek to afford Plaintiff procedural due process and thereafter impose a sex offender registration requirement on Plaintiff. For this reason, in her First Amended Complaint Plaintiff seeks an additional procedural due process protection overlooked by the decisions in Coleman and Meza, supra, but which, Plaintiff contends, is no less required by the Fourteenth Amendment. By this Plaintiff means a declaration from this Court, and prospective equitable relief, concerning the burden of proof that must be met by Defendants in relation to any finding that Plaintiff currently “constitute[s] a threat to society by reason of h[er] lack of sexual control.” Coleman v. Dretke, supra, 395 F.3d at 225. Although not addressed by the Fifth Circuit in either Coleman or Meza, the majority of trial and appellate courts which have considered this question is of the opinion that a “clear and convincing evidence” standard, and not merely a “preponderance of the evidence” standard, must be applied to determine an alleged “sex offender’s” status as a minimum requirement of procedural due process under the Fourteenth Amendment. These courts have generally adopted the thorough constitutional analysis provided by the U.S. Court of Appeals for the Third Circuit in E.B. v. Verniero, 119 F.3d 1077, 1110-1111 (1997). See, e.g., Doe v. Fauver, 3 F.Supp.2d 485, 492 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 39 of 86 35 (D.N.J.1997)(noting then-recent order entered by Supreme Court of New Jersey requiring proof by “clear and convincing evidence”); Doe v. Pataki, 3 F.Supp.2d 456, 471-472 (S.D.N.Y. 1998); Commonwealth v. Hayle, 719 A.2d 763, 768 (Pa. Super. Ct. 1998); State v. Norman, 808 N.W.2d 48, 64 (Neb. 2012); and, Doe v. Sex Offender Registry Board, 41 N.E. 3d 1058, 1071 (Mass. 2015). There is presently no regulatory rule or statute under Texas law applicable to any state agency which requires that the critical finding stated in Coleman be determined by “clear and convincing evidence.” Given the Department Defendants’ implicit threat that they will seek to provide Plaintiff with a “Coleman hearing” and thereafter impose sex offender registration on Plaintiff, Plaintiff moves the Court to enter a permanent injunction prohibiting Department Defendants from requiring Plaintiff to register as a sex offender unless, in the course of adhering to the other procedural protections described in Meza v. Livingston, supra, a neutral and detached arbiter of fact determines, by “clear and convincing evidence,” that Plaintiff currently “constitute[s] a threat to society by reason of h[er] lack of sexual control.” Coleman v. Dretke, supra, 395 F.3d at 225. G) Nominal Damages. The Plaintiff has expressly sought an award of nominal damages in her First Amended Complaint.65 To the extent the Department Defendants may contend Plaintiff is not entitled to recover nominal damages from them due to their Eleventh Amendment immunity they would be in error. 65 See, Plaintiff’s First Amended Complaint, 24. Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 40 of 86 36 The Plaintiff does not dispute that her claims against the Department Defendants in their official capacities must be treated as a suit against the State of Texas.66 But the question of whether the Eleventh Amendment bars Plaintiff’s claim for nominal damages against the Department Defendants in their official capacities (or against the State of Texas) depends on whether, in this particular case, an award of nominal damages would fairly be characterized as “legal” relief or, in contrast, “equitable” relief. The U.S. Supreme Court has ruled that “a monetary award incidental to or intertwined with injunction relief” may be deemed “equitable” relief. Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 571 (1990). In perhaps the most thorough examination of whether nominal damages are barred by the Eleventh Amendment, the Eighth Circuit Court of Appeals in Hopkins v. Sanders, 199 F.3d 968, 976-978 (1999) ruled that a claim to nominal damages was “legal” relief barred by the Eleventh Amendment. It did so, however, on the ground that the District Court had declined to grant the plaintiff injunctive relief. Id., 199 F.3d at 977. See also, Landgraf v. USI Film Products, 968 F.2d 427, 431 (5th Cir. 1992)(ruling claim for nominal damages in Title VII case constituted “legal” relief where “no declaratory judge [was] appropriate.”). In contrast to Hopkins v. Sanders, and Landgraf v. USI Film Products, supra, in the present case the nominal damages sought by Plaintiff arise out of the equitable declaratory relief she seeks, based on the Defendants’ denial of her “absolute” right to Procedural Due Process. These claims must be characterized as “equitable,” and not 66 See e.g., Hafer v. Melo, 502 U.S. 21, 25 (1991)(“A suit against a state official in her official capacity … should be treated as a suit against the State.”). Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 41 of 86 37 “legal” or “compensatory,” relief. As the Supreme Court held in a related context wherein a public school student challenged his suspension without Due Process: “Even if respondents’ suspensions were justified, and even if they did not suffer any other actual injury, the fact remains that they were deprived of their right to procedural due process. It is enough to invoke the procedural safeguards of the Fourteenth Amendment that a significant property interest is at stake, whatever the ultimate outcome of a hearing…. Common-law courts traditionally have vindicated deprivations of certain ‘absolute’ rights that are not shown to have caused actual injury through the award of a nominal sum of money. By making the deprivation of such rights actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed; but at the same time, it remains true to the principle that substantial damages should be awarded only to compensate actual injury or, in the case of exemplary or punitive damages, to deter or punish malicious deprivations of rights. Because the right to procedural due process is ‘absolute’ in the sense that it does not depend upon the merits of a claimant’s substantive assertions, and because of the importance to organized society that procedural due process be observed, we believe that the denial of procedural due process should be actionable for nominal damages without proof of actual injury. We therefore hold that if, upon remand, the District Court determines that respondents’ suspensions were justified, respondents nevertheless will be entitled to recover nominal damages not to exceed one dollar from petitioners.”67 The Plaintiff’s claims to nominal damages are “incidental to or intertwined with” her claims to declaratory and other equitable relief, and they therefore constitute a request for “equitable” and not “legal” relief. A contention that an award of nominal damages under the circumstances of the present case would constitute an award of “compensatory” damages, and should therefore be barred by the Eleventh Amendment, would be simply in error. H) Attorney’s Fees. The Supreme Court has observed that Title 42 U.S.C. Section 1988 “makes no distinction between actions for damages and suits for equitable relief.” Blanchard v. 67 Carey v. Piphus, 435 U.S. 247, 266 (1978)(internal citations omitted). Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 42 of 86 38 Bergeron, 489 U.S. 87, 95-96 (1989). In this motion Plaintiff seeks only a finding by the Court that she is a “prevailing party” within the meaning of Section 1988.68 While still early in this litigation, the Court’s entry of a temporary restraining order and preliminary injunction has already imposed a judicially sanctioned “material alteration in the legal relationship” between Plaintiff and the Department Defendants, as described at length in the factual section of this motion. In the event the Court should find Plaintiff to be the prevailing party on that basis alone, or upon the disposition of this motion, Plaintiff will timely submit her claim for attorney’s fees pursuant to Section 1988 in accordance with Local Rule CV-7 (j). PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that this Motion for Summary Judgment will in all things be GRANTED. Respectfully submitted, /s/ Richard Gladden Texas Bar No. 07991330 1200 West University Dr., Suite 100 Denton, Texas 76201 940/323-9300 (voice) 940/539-0093 (facsimile) richscot1@hotmail.com (email) Attorney-in-Charge for Plaintiff & Wm. T. Habern Texas Bar No. 08665500 The Habern Law Firm 1221 Studewood, Suite 500 Houston, Texas 77008 68 Farrar v. Hobby, 506 U.S. 103, 111-112 (1992)(“a plaintiff ‘prevails’ [under Section 1988] when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.”); and id, 506 U.S. at 114 (“the prevailing party inquiry does not turn on the magnitude of the relief obtained.”). Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 43 of 86 39 713/942-2376 (voice) Co-Counsel for Plaintiff CERTIFICATE OF SERVICE I, Richard Gladden, hereby certify that I have delivered a true and correct copy of the foregoing document on Defendants Raymond Trejo, Vincent Castilleja and Steven McCraw, using the electronic CM/ECF filing system, through their Attorneys of Record, Ms. Cela Cunniff (email: Cela.Cunniff@oag.texas.gov), and Bruce Garcia (email: Bruce.Garcia@oag.texas.gov); and on Defendant Chief Kevin Phillips, by the same means through his Attorney of Record, Belvin R. Harris (email: BBeck@hatcherharris.com), all on this 22nd day of March, 2017. /s/Richard Gladden Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 44 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 45 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 46 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 47 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 48 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 49 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 50 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 51 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 52 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 53 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 54 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 55 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 56 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 57 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 58 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 59 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 60 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 61 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 62 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 63 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 64 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 65 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 66 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 67 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 68 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 69 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 70 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 71 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 72 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 73 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 74 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 75 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 76 of 86 Texas Department of Public Safety TxDPS Sex Offender Registry USER: Anonymous (0,0) SERVER: DPSWEB7 DATE:3/2/2017 6:46:09 PM LANG:ENGLISH (UNITED STATES) | LITTLEPAGE,ANGEL DAWN SID 08965629 RISK LEVEL MODERATE ENDING REGISTRATION DATE (PROJECTED) 05/10/2027 VERIFICATION REQUIREMENT ANNUALLY SEX FEMALE RACE WHITE ETHNICITY NON-HISPANIC HEIGHT 5'1" WEIGHT 95 LBS HAIR COLOR BLOND OR STRAWBERRY EYE COLOR BLUE SHOE SIZE 04.0 SHOE WIDTH UNKNOWN NAME(S) LITTLEPAGE,ANGEL DAWN (PRIMARY) LITTLEPAGE,ANGEL BIRTH DATE(S) 12/06/1991 (PRIMARY) Notices DPS Cannot guarantee the records you obtain through this site relate to the person about whom you are seeking information. Searches based on names, dates of birth and other alphanumeric identifiers are not always accurate. The only way to positively link someone to a criminal record is through fingerprint verification. The registry contains information as reported by the law enforcement agency that served as the offender's last Texas registration authority. Registrants who leave the state will have their last reported state/country of intended residence reflected in the address portion of their record. Registration information will remain on the web site until the duty to register has expired or other relief allowed by statute is granted. (Art. 62.101 and 62.251 Tx CCP) DATE EVENT TYPE AGENCY 02/17/2017 REGISTRATION COMMUNITY SUPERVISION & CORRECTIONS DEPARTMENT Reported Information Not Verified The reported information has not been verified by the local law enforcement authority. This information reflects data reported at the time of initial registration. This record indicates the offender is registered as a sex offender, but the Department of Public Safety has not received confirmation that the offender appeared before the local law enforcement agency to verify their registration. An offender's residence cannot be confirmed until the offender reports to the local law enforcement agency to be verified. If you encounter this offender, please report this to the local law enforcement agency in your area immediately. Home Search Photo Reported 12/30/2011 Page 1 of 2 3/2/2017https://records.txdps.state.tx.us/SexOffender/PublicSite/Application/Search/Individual.aspx... Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 77 of 86 Reported Information ADDRESS 1400 OLD SIVELLS BEND RD LOT 113 GAINESVILLE TX 76240 Offenses UNLAWFUL RESTRAINT VICTIM LESS THAN 17 YEARS OF AGE STATUTE TEXAS PENAL CODE 20.02 VICTIM SEX FEMALE VICTIM AGE 15 DISPOSITION DATE 05/10/2012 JUDGMENT 5Y PROBATION/COMMUNITY SUPERVISION Photo Reported - 12/13/2011 Page 2 of 2 3/2/2017https://records.txdps.state.tx.us/SexOffender/PublicSite/Application/Search/Individual.aspx... Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 78 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 79 of 86 ARTICLE VI. - REGISTERED SEX OFFENDERS Sec. 13-131. - Definitions. For the purposes of this article, the following terms, words and derivations thereof shall have the meanings given herein: Database: The Texas Department of Public Safety's Sex Offender Database. Day care facility or day care center: An establishment where more than three (3) unrelated children under the age of fourteen (14) are left for care, training, education, custody or supervision during the day or any portion thereof. The term does not include overnight lodging, medical treatment, counseling or rehabilitative services and does not apply to any school, public or private, as herein defined. Minor: A person younger than seventeen (17) years of age. Permanent residence: A place where a person abides, lodges or resides for fourteen (14) or more consecutive days. Playground: Any outdoor facility that is not on the premises of a school and that is intended for recreation, is open to the public, and contains three (3) or more separate apparatus intended for the recreation of children, such as slides, swing sets and teeterboards. Premises: Real property and all buildings and appurtenances pertaining to the real property. Public or private youth center: Any recreational facility or gymnasium that is intended primarily for use by persons who are seventeen (17) years of age or younger and regularly provides athletic, civic or cultural activities, whether publicly or privately owned or operated. Public park: Any premises designated by the town as parkland that is not on the premises of a school, that is intended for recreation, and that is open to the public. School: A private or public elementary or secondary school. Swimming pool: Any structure intended or used by the public for swimming or recreational bathing, regardless of size, and including in-ground, above ground and on ground swimming pools. The term shall not include swimming or bathing facilities located on private residential property which is not open for use by the public or swimming or bathing facilities located within an apartment or other multifamily housing complex. Page 1 of 4Gainesville, TX Code of Ordinances 3/7/2017about:blank Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 80 of 86 (a) (b) (c) Temporary residence: A place where a person abides, lodges or resides for a period of fourteen (14) or more days in the aggregate during any calendar year and which is not the person's permanent residence, or a place where a person routinely abides, resides or lodges for a period of four (4) or more consecutive days or nonconsecutive days in any month and which is not the person's permanent residence. Video arcade facility: Any facility that is open to the public, including persons who are seventeen (17) years of age or younger, is intended primarily for the use of pinball, video or computer games and contains at least three (3) pinball or video machines or computers for gaming uses. (Ord. No. 1196-03-2008, § 2, 3-4-08) Sec. 13-132. - Offenses. For each person required to register on the Texas Department of Public Safety's Sex Offender Database (the "database") because of a violation involving a victim who was a minor, it is unlawful for that person to establish a permanent residence or temporary residence in the city within two thousand (2,000) feet of any premises where children commonly gather, including a public or private school, day care facility, public park, playground, public or private youth center, public swimming pool or video arcade facility. For the purposes of this article, planted street medians shall not be considered public parks. (Ord. No. 1196-03-2008, § 2, 3-4-08) Sec. 13-133. - Evidentiary matters; measurements. It shall be prima facie evidence that this article applies to a person if that person's record, or records pertaining to that person, appears on the database and the database indicates that the victim was a minor. For the purposes of determining the minimum distance separation, the two thousand-foot requirement shall be measured by following a straight line from the outer property line of the permanent or temporary residence to the nearest property line of the premises where children commonly gather, or, in the case of multiple residences on one (1) property, measuring from the nearest property line of the property where the multiple residences are situated to the nearest property line of the premises where children commonly gather. Page 2 of 4Gainesville, TX Code of Ordinances 3/7/2017about:blank Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 81 of 86 (1) (2) (3) (4) A map depicting the prohibited areas identified pursuant to the terms of this article and as approved by the city council shall be maintained by the City of Gainesville. The city shall review the map at least annually for changes. The map will be available to the public at the City of Gainesville Police Department. A copy of the approved map is hereby incorporated into Ordinance No. 1196-03-2008 by reference as Exhibit "A", and such map may be amended from time to time through council approval. (Ord. No. 1196-03-2008, § 2, 3-4-08) Sec. 13-134. - Culpable mental state not required. Neither allegation, nor evidence of a culpable mental state is required for the proof of an offense defined by this article, and any offense shall be considered a strict liability offense. (Ord. No. 1196-03-2008, § 2, 3-4-08) Sec. 13-135. - Affirmative defenses. It is an affirmative defense to the prosecution of an offense under this article that any of the following conditions apply: The person required to register on the database established his/her permanent or temporary residence in the city prior to the effective date of this article, and has complied with all sex offender registration laws of the State of Texas. The person required to register on the database is a minor, or was a minor when he/she committed the offense requiring such registration and was not convicted as an adult. The premises where children commonly gather was opened or began to be used as such after the person established the permanent or temporary residence, and the person has complied with all sex offender registration laws of the State of Texas. The information in the database pertaining to that person is incorrect and, if corrected, this article would not apply to that person. Sec. 13-136. - Penalty. Any person violating the provisions of this article shall, upon conviction, be punished by a fine not to exceed the sum of five hundred dollars ($500.00) for each offense; and each and every day such violation shall continue shall be deemed to constitute a separate offense. Page 3 of 4Gainesville, TX Code of Ordinances 3/7/2017about:blank Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 82 of 86 (Ord. No. 1196-03-2008, § 2, 3-4-08) Page 4 of 4Gainesville, TX Code of Ordinances 3/7/2017about:blank Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 83 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 84 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 85 of 86 Case 1:17-cv-00190-RP Document 20 Filed 03/23/17 Page 86 of 86 solo page UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION ANGEL DAWN LITTLEPAGE Plaintiff V. CAUSE NO. 1:17-CV-00190-RP RAYMOND TREJO, et al., Defendants ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT On this day came on to be considered in the above captioned and numbered cause the Plaintiff’s Motion for Summary Judgment. The Court, having carefully considered Plaintiff’s motion, is of the opinion that the motion is well-taken and should be, and therefore is hereby, GRANTED. Additional orders granting Plaintiff relief on the merits in this case will follow this order, along with an appropriate final judgment. IT IS SO ORDERED. SIGNED this ___ day of __________________, 2017. ______________________ ROBERT PITMAN UNITEDSTATES DISTRICT JUDGE Case 1:17-cv-00190-RP Document 20-1 Filed 03/23/17 Page 1 of 1