Barron v. Mclane - TCCO Executive Director

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
RAUL BARRON,
Institutional ID No. 01512364
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Plaintiff,
V. 	No. 5:25-CV-094-H-BV
MARSHA MCLANE,
Defendant.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Prose Plaintiff Raul Barron alleges that Defendant Marsha McLane enacted and
enforces a policy that unlawfully takes a pmtion of his veteran disability benefits in
violation of federal law and his constitutional rights. Dkt. No. I. McLane moves to
dismiss the complaint under Federal Rule of Civil Procedure 12(b)(l) and (b)(6). For the
reasons explained further below, the undersigned concludes that Barron's official-
capacity claims against McLane for monetary relief and retrospective declaratory relief
are barred by sovereign immunity, while his claims for prospective injunctive relief are
not. 	Even so, Barron has not pleaded sufficient facts to state a violation of federal or
constitutional law. Thus, the undersigned magistrate judge recommends that the district
judge GRANT McLane's motions and dismiss Barron's complaint. 	Dkt. No. 9.
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1. Barron objects to a policy that requires him to pay a portion of his military
disability benefits as a cost-recovery fee for his SVP treatment.
Barron was tried and civilly adjudged to be a sexually violent predator (SVP), as
defined by Texas Health & Safety Code§ 841.003. After he completed his criminal
sentence, Texas transferred him to the Texas Civil Commitment Center (TCCC)/Bill
Clayton Detention Center in Littlefield, Texas, where he remains confined for inpatient
treatment in accordance with the provisions of Texas Health & Safety Code§ 841.081.
Dkt. No. I at 5, 8. 1 McLane serves as the Executive Director of the Texas Civil
Commitment Office (TCCO), which administers Texas's SVP civil-commitment program.
Barron alleges that when he arrived to the TCCC in 2020, his case manager
informed him that the TCCO would require him to pay 33% of all income every month,
including his Department ofVeterans Affairs (VA) disability benefits. Id. at 8. The case
manager advised that this cost-recovery fee paid "back expenses incurred by the state for
its civil commitment program." Id. Barron objected, stating that his VA benefits were
protected by federal law, and he could not be required to pay the fee using those sums.
Id. But Barron's case manager required Barron to pay. See id. at 5, 8-9. According to
Barron, McLane "used" the case manager "to ensure that [Barron] consistently paid the
required fee" upon his arrival. Id. at 5.
The case manager reviev.red Barron's bank statements, required Barron to take
polygraphs, and ''audited" Barron's bank account to ensure Barron had disclosed all
1 Page citations to Barron's complaint refer to the electronic page number assigned by the Court's
electronic filing system.
2
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relevant financial information. Id. at 8-9. The case manager further threatened Barron
with disciplinary action-including loss of commissary and package privileges-if
Barron "did not comply." Id. at 9. Sometime between 2020 and 2025, TCCO reduced
the fee to 25% of Barron's income. Id. He estimates that over a four-year period he has
paid "at least $35,000 in cost recovery fees." Id.
Based on the foregoing, Barron sues McLane for implementing and enforcing the
cost-recovery policy, alleging that the policy violates his Fourth and Fourteenth
Amendment rights. See id. at 2-3, 5, 8-9. Barron also alleges that deducting the fee from
his VA benefits violates 38 U.S.C. § 5301 (the "anti-assignment claim"). Id. Barron
does not specif), the capacity in which he sues McLane. Id. Barron seeks declaratory and
injunctive relief and monetary damages. Id. at 6.
2. McLane moves to dismiss under Rule 12(b)(l) and (b)(6).
McLane moves to dismiss Barron's complaint under Rule 12(b)(l) and (b)(6).
Dkt. No. 9. To the extent Barron sues McLane in her official capacity, McLane argues
the claims are barred by sovereign immunity. Dkt. No. 10 at 7-9. McLane also
maintains that she is not a suable "person" under § 1983. Id. at 9.
In addition, McLane asserts Barron has not pleaded adequate facts establishing a
policy claim. First, McLane alleges Barron has not shown McLane ,vas personally
involved in the alleged violation or that she implemented an unconstitutional policy. Id.
at 9-11. Next, McLane states that Barron's complaint does not set forth adequate facts
showing a Fourth or Fourteenth Amendment claim, nor has he demonstrated a violation
of§ 5301. Id. at 11-19.
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Finally, McLane maintains she is entitled to qualified immunity for any
individual-capacity claims. Id. at 19. In McLane's view, not only has Barron failed to
allege a violation, but the law was not clearly established. Id. at 20-23.
3. 	Barron's claims should be dismissed.
A. 	Applicable legal standards
i. 	Rule 12(b)(l)
Rule 12(b)(I) authorizes a party to seek dismissal due to a lack of subject-matter
jurisdiction. Fed. R. Civ. P. 12(b)(l); Ramming v. United States, 281 F.3d 158, 161 (5th
Cir. 2001 ). "Dismissal under Rule 12(b)( 1) is appropriate if a claim is barred by state
sovereign or Eleventh Amendment immunity." Shaikh v. Tex. A&M Coll. of Med., 739 F.
App'x 215,217 (5th Cir. 2018) (per curiam) (citations omitted). The party asserting
jurisdiction bears the burden of demonstrating its existence. Id. ( citation omitted). "A
court may dismiss under Rule 12(b)(l) on any one of three separate bases:(!) the
complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the
record; or (3) the complaint supplemented by undisputed facts plus the court's resolution
of disputed facts." Id. at 217-18 (citation and internal quotation marks omitted). "When
a Rule 12(b)(l) motion is filed in conjunction with other Rule 12 motions, the court
should consider the Rule 12(b )(!) jurisdictional attack before addressing any attack on
the merits." Id. at 218 (citation omitted).
ii. 	Rule 12(b)(6)
To survive a Rule 12(b)(6) motion, a plaintiff must allege sufficient facts "to state
a claim to relief that is plausible on its face." Bell At!. Corp. v. Twombly, 550 U.S. 544,
4
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570 (2007); see Colony Ins. Co. v. Peachtree Constr., Ltd., 647 F.3d 248,252 (5th Cir.
2011). "A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 	In considering
12(b)(6) motions, courts must accept well-pleaded facts (not mere conclusory allegations)
as true and view them in the light most favorable to the plaintiff. 	Twombly, 550 U.S. at
555 (explaining that a plaintiff must provide "more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do"); Snow Ingredients,
Inc. v. SnoWizard, Inc., 833 F.3d 512,520 (5th Cir. 2016) (quoting Iqbal, 556 U.S. at
678) (stating that courts accept all well-pleaded facts as true, but"' [t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements' cannot
establish facial plausibility"). A plaintiffs "[f]actual allegations must be enough to raise
a right to relief above the speculative level, on the assumption that all the allegations in
the complaint are true (even if doubtful in fact)." 	Twombly, 550 U.S. at 555 (internal
citations omitted). "The court's review is limited to the complaint, any documents
attached to the complaint, and any documents attached to the motion to dismiss that are
central to the claim and referenced by the complaint." Lone Star Fund V (U.S.), L.P. v.
Barclays Bank PLC, 594 F.3d 383,387 (5th Cir. 2010).
iii. 	Section 1983 and Qualified Immunity
"A plaintiff makes out a § 1983 claim if he shows a violation of the Constitution
or of federal law, and then shows that the violation was committed by someone acting
under color of state law." Rich v. Palko, 920 F.3d 288, 293-94 (5th Cir. 2019) (internal
5
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quotation marks, brackets, and citation omitted). "But government officials performing
discretionary duties can assert [qualified immunity]." Id. at 294. "Qualified immunity
protects public officials from suit unless their conduct violates a clearly established
constitutional right." Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008) (citation
omitted).
When an official raises the affirmative defense of qualified immunity, the court
must conduct a two-step analysis to determine whether: ( 1) the plaintiff has demonstrated
the official's conduct violated a constitutional or statutory right; and (2) the right was
"clearly established" at the time of the violation. Pearson v. Callahan, 555 U.S. 223, 232
(2009). The court may address either prong first. 	Id. at 236. A plaintiff bears the burden
of negating a properly asserted qualified immunity defense. Brumfield, 551 F.3d at 326.
When a defendant raises the defense in a motion to dismiss, "it is the defendant's conduct
as alleged in the complaint that is scrutinized for 'objective legal reasonableness."'
Behrens v. Pelletier, 516 U.S. 299,309 (1996) (emphasis omitted).
B. 	Analysis
A. 	The Court lacks subject-matter jurisdiction over Barron's
official-capacity claims for money damages and retrospective
declaratory relief.
McLane generally asserts that Barron's official-capacity claims against her are
barred by sovereign immunity. 	0kt. No. 10 at 7. McLane's argument makes no
distinction between Barron's claims for monetary damages and injunctive or declaratory
relief. See id. at 7-9.
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"[A] suit against a state official in his or her official capacity is not a suit against
the official but rather is a suit against the official's office." 	Will v. Mich. Dep 't of State
Police, 491 U.S. 58, 71 (1989). And "neither a State nor its officials acting in their
official capacities are 'persons' under§ 1983" because they serve as substitutes for the
State itself. Id. 	"States are immune from private suits unless they consent or unless
Congress validly strips their immunity." Tex. All.for Retired Ams. v. Scott, 28 F.4th 669,
671 (5th Cir. 2022).
Barron has not shown that Texas has consented to be sued, nor has Congress
clearly and validly abrogated immunity under §§ 1983 or 5301. See Quern v. Jordan,
440 U.S. 332,345 (1979) (explaining that§ 1983 gives no indication "on its face an
intent to sweep away the immunity of the States; nor does it have a history which focuses
directly on the question of state liability and which shows that Congress considered and
firmly decided to abrogate the Eleventh Amendment immunity of the States"); 38 U.S.C.
§§ 5301-07. Thus, the Court lacks subject-matter jurisdiction over Barron's official-
capacity claims for money damages.
Barron also alleges claims for injunctive and declaratory relief. 2 Under the Ex
parte Young exception, sovereign immunity does not bar claims for prospective,
2 McLane incorrectly states that "Barron does not specify what relief he seeks." Dkt. No. IO at 5. Based
on this mistaken conclusion, McLane did not specifically address whether Barron's claims for injunctive
and declaratory relief are barred by sovereign immunity. Nevettheless, because Barron was generally on
notice that McLane seeks dismissal under Rule 12(b)(I), and the Comt has a duty to examine its
jurisdiction, the undersigned has considered the claims herein. Moreover, these findings, conclusions,
and recommendation provide Barron additional notice of the deficiencies in his claims for equitable relief.
See Carver v. Atwood, 18 F.4th 494, 497 (5th Cir. 2021) (stating that district court could "sua sponte
dismiss [plaintiffs] complaint" because all claims were "barred by sovereign immunity" but dismissal
must be without prejudice).
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equitable relief based on an ongoing violation of federal law. 	Va. Off for Prof. & Advoc.
v. Stewart, 563 U.S. 247, 254-56 (2011); Williams ex rel. JE. v. Reeves, 954 F.3d 729,
736 (5th Cir. 2020). To meet the Young exception, "[t]he suit must: (1) be brought
against state officers who are acting in their official capacities; (2) seek prospective relief
to redress ongoing conduct; and (3) allege a violation of federal, not state, law."
Williams, 954 F.3d at 736.
Here, Barron's claims for declaratory relief are retrospective. See Dkt. No. 1 at 6.
He wants the Court to declare that McLane violated§ 5301, as well as the Fourth and
Fourteenth Amendments. Id. 	Thus, the Young exception does not apply. 	Williams, 954
F.3d at 736.
Conversely, Barron's claims for injunctive relief are prospective. Dkt. No. 1 at 6.
Barron contends that McLane implemented and is enforcing a policy of assessing fees
based on his VA benefits in violation of the Constitution and§ 5301, and he asks the
Court to enjoin McLane from "further unlawful takings and harm based thereon." Id. at
5-6. Thus, the Young exception applies to that claim, and the undersigned concludes the
Court has subject-matter jurisdiction over Barron's claims for injunctive relief.
In sum, the undersigned recommends that the district judge grant-in-part
McLane's Rule 12(b)(l) motion and dismiss without prejudice Barron's official-capacity
claims against McLane for money damages and retrospective declaratory relief. 	But the
district judge should deny McLane's Rule 12(b)(l) motion as to Barron's official-
capacity claims against McLane for injunctive relief.
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B. 	Barron fails to state a Fourth Amendment claim.
Barron asserts that McLane's purported implementation and enforcement of a
policy requiring him to pay the cost-recovery fee using his VA benefits violates his
Fourth Amendment rights. Dkt. No. 1 at 5-6, 8-9. Barron's allegations are imprecise,
but the Court understands him to allege that the TCCO calculates the fee based on all
income, including his VA disability benefits, and he pays the fee to avoid disciplinary
action. See id. 	The Court does not understand Barron to claim that the TCCO
unilaterally deducts the fee from Barron's account. See id.
The Fourth Amendment protects against unreasonable searches and seizures.
U.S. Const. amend. IV. "A seizure of property occurs when there is 'some meaningful
interference with an individual's possessoty interests in that property."' Morris v.
Livingston, 739 F.3d 740, 751 (5th Cir. 2014) (quoting United States v. Jacobsen, 466
U.S. 109, 113 (1984)). "As [the Fourth Amendment's] text makes clear, the ultimate
touchstone of the Fourth Amendment is reasonableness." Lange v. California, 594 U.S.
295, 301 (2021) (internal quotation marks and citation omitted).
McLane first argues that imposition of the cost-recovery fee is not a "seizure"
within the meaning of the Fourth Amendment. Dkt. No. 10 at 11-13. McLane points to
§ 841.084 of the Texas Health and Safety Code, which provides that an SVP "who is not
indigent ... is responsible for the cost of ... housing and treatment" and OPS tracking
services, as well as any costs to repair the tracking devices if they are intentionally lost or
damaged. Tex. Health & Safety Code§ 841.084(a)(l). Non-indigent SVPs are required
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to pay the TCCO "a monthly amount ... to defray the cost of providing the housing,
treatment, and service." Id. § 841.084(a)(2).
Because non-indigent SVPs are assessed a fee in exchange for the provision of
treatment, housing, and GPS tracking (a requirement during, inter alia, the initial tiers of
commitment,§ 841.082), the cost-recovery fee is likely not a seizure. Morris, 739 F.3d
at 752 (expressing doubt whether a health care services fee was "a seizure given its
nature as a fee charged in exchange for the provision of medical care"); see Reynolds v.
Wagner, 128 F.3d 166, 180 (3d Cir. 1997) (explaining that "in exchange for the fees, the
inmates receive the benefit of health care, the value of which undoubtedly exceeds the
modest fee assessed").
Regardless, Banon has not shown that the cost-recovery policy or its enforcement
is unreasonable. The policy fulfills§ 841.084's requirement~that non-indigent SVPs
contribute toward the cost of housing and treatment. A policy aimed at satisfying a
statutory provision intended to control budgetary concerns is not unreasonable. See
Morris, 739 F.3d at 752 (concluding prisoner "ha[d] not shown that the taking of funds
from his inmate trust fund account to pay for his medical care was unreasonable in light
of the goal of controlling the prison budget"). Barron does not dispute the budgetary
concern. See Dkt. Nos. 11, 13. 3
3 Barron filed an initial response to McLane's motion, 0kt. No. 11, and then filed a "supplemental brief."
0kt. No. 13. Although Barron did not seek leave to file the supplemental document and it is untimely, the
undersigned has considered it.
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Because assessment of a cost-recovery fee is not a seizure, nor is it unreasonable
considering the need to control the budget for housing and treating SVPs, the undersigned
concludes Barron has failed to state a Fourth Amendment claim. Thus, the district judge
should grant McLane's Rule 12(b)(6) motion and dismiss Barron's Fourth Amendment
claim against McLane in her official capacity for injunctive relief and against McLane in
her individual capacity.
C. 	Barron fails to show a violation of his procedural due process
rights.
Barron asserts that McLane assessed the cost-recovery fee "without providing
[him] the opportunity to be heard regarding th[ e] matter, in a meaningful time and in a
meaningful manner" in violation of his due process rights. Dkt. No. I at 3, 5. McLane
maintains that Barron's claim "fails because (1) [he] was provided pre-deprivation due
process when he was adjudicated a[n SVP] ... , and further, because (2) [he] was
provided post-deprivation due process." Dkt. No. 10 at 13.
To state a procedural due process claim, "a plaintiff must first identify a protected
life, liberty or property interest and then prove that governmental action resulted in a
deprivation of that interest." Morris, 739 F.3d at 750 (citation omitted). 	Ifhe does so, a
plaintiff must also establish that the deprivation was not "preceded by notice and an
opportunity for the individual to be heard." Id.; see Mathews v. Eldridge, 424 U.S. 319,
333, 348 (1976). "Procedural due process is 'a flexible concept,' and the procedural
protections due under the Fourteenth Amendment vary depending on the circumstances."
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Richards v. Mclane, No. 21-20450, 2023 WL 6533453, at *7 (5th Cir. Oct. 6, 2023)
(quoting Zinermon v. Burch, 494 U.S. 113, 127 (1990)).
Barron acknowledges that upon his arrival to the TCCC, he learned from his case
manager that he would be required "to pay out 33% of all income [Barron] received
while residing at" the TCCC. 4 Dkt. No. 1 at 8. 	Barron also generally received notice and
an opportunity to be heard during the civil commitment process. See §§ 841.061, .062
(providing that an individual is entitled to a trial, where a judge or jury must find beyond
a reasonable doubt that the individual is an SVP); § 841.084 (providing that an SVP may
be required to contribute to the costs of housing and treatment). 	In being adjudicated an
SVP, Barron became subject to Chapter 841 of the Health and Safety Code, which
expressly provides that SVPs may be required to contribute to the costs of their care.
§ 841.084. And "[w ]hen the legislature enacts a law ... that affects a general class of
persons, all of those persons have received procedural due process by the legislative
process itself and they have no right to individual attention." Matzen v. Mclane, 659
S.W.3d 381,392 (Tex. 2021) (quoting United States v. lUlAC, 793 F.2d 636,648 (5th
Cir. 1986)) (rejecting SVP's contention that amended commitment order assessing cost-
4 Barron arrived to the TCCC in 2020, but he did not file this action until 2025. Because it appears
Barron filed his complaint more than two years after he learned of the alleged violations, it appears at
least some claims are time-barred. "The statute of limitations is an affirmative defense that is usually
waived if not timely pleaded by a defendant." Ogbebor v. Hardy, No. 24-30403, 2025 WL 586822, at *2
(5th Cir. Feb. 24, 2025) (cautioning district courts against "raising waivable affirmative defenses sua
sponte," including the affirmative defense of statute oflimitations). "[D]ismissal under Rule 12(b)(6)
[may be] proper" "[i]f, based on the facts pleaded and judicially noticed, a successful affirmative defense
appears." Hall v. Hodgkins, 305 F. App'x 224, 227-28 (5th Cir. 2008) (per curiam). McLane did not
mention this potential defense, so the undersigned has not considered it here, although it may form an
alternative basis for dismissal. See Williams, 2025 WL 2773806, at *7.
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recovery fee in accordance with amended Chapter 841 violated his due process rights,
holding that "TCCO need not provide each SVP with individualized process every time it
alters generally applicable rules or policies governing committed SVPs").
Finally, Barron concedes that he complained about the fee verbally to his case
manager and "via demand letter" to the TCCO. Dkt. No. 1 at 8-9 (cleaned up). As
argued by McLane, Barron can avail himself of the TCCC grievance process to dispute
the fee or address other issues. 	Dkt. No. 10 at 15-16; see also Williams v. Mclane, No.
5:24-CV-00248-H, 2025 WL 2773806, at* 11 (N.D. Tex. Sept. 26, 2025) (Hendrix, J.)
(rejecting plaintiffs contention that TCCO's cost-recovery policy violated his procedural
due process rights in party because plaintiff"received notice of the initial cost-recovery
assessment and periodic notices of his increasing debt obligation," and he had access to
and used the grievance process).
In sum, Barron has not pleaded sufficient facts showing he was unconstitutionally
deprived of notice and an opportunity to be heard about the cost-recovery fee. 	The
undersigned therefore recommends the district judge grant McLane's Rule 12(b)(6)
motion and dismiss Ball'on's due process claim against McLane in her official capacity
for injunctive relief and against McLane in her individual capacity.
D. 	Barron has not stated a claim under § 5301.
The crux of Barron's complaint is that to the extent the cost-recovery fee is
calculated on and paid with his VA benefits, it violates § 530 I. See Dkt. No. 1 at 5
(claiming McLane "has required [him] to pay 33% and 25% of this monthly [VA
benefits] income in violation of ... 38 U.S.C. § 5301(a)(l) (cleaned up)), 9 (stating that
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he "paid the 33% TCCO cost-recovery fee (cleaned up)); 0kt. Nos. 11, 13 (focusing his
response to the motion to dismiss on§ 5301). Stated differently, Barron complains not
only about the calculation of the cost-recovery fee but also the fact that he pays the fee
using his VA benefits. See 0kt. No . I at 5, 8-9. According to Barron, he has paid about
"$35,000 in cost-recovery fees." Id. at 9 (cleaned up).
Section 5301 provides that VA benefits "shall not be assignable except to the
extent specifically authorized by law, and such payments" are "exempt from taxation"
and "the claim of creditors, and shall not be liable to attachment, levy, or seizure by or
under any legal or equitable process whatever, either before or after receipt by the
beneficiary." 38 U.S.C. § 530l(a)(l). The Fifth Circuit has assumed but not determined
"that Section 5301(a) may be privately enforced through Section 1983." Hawes v.
Stephens, 964 F.3d 412,415 (5th Cir. 2020). The undersigned similarly assumes such
here. See also Higgins v. Beyer, 293 F.3d 683, 689 (3d Cir. 2002) (concluding "that
§ 5301 (a) provides a federal right that is enforceable under § 1983").
Although Barron can enforce § 5301 in this civil-rights action, he has not stated a
claim because he has not pleaded any facts shm:ving that TCCO has attached, levied, or
seized his VA benefits through a legal or equitable process in violation of§ 5301, nor has
he shown TCCO's calculation of the fee is unlawt1.1l. Barron disputes assessment of the
cost-recovery fee calculated on VA benefits money and that TCCO requires him to pay
the fee or face disciplinary action. Dkt. No. I at 5, 8-9. But Barron admits that he pays
the fee to avoid being "punished with restrictions." Id. at 9. He pleads no facts
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suggesting that TCCO officials are deducting the money from his account without his
consent or have otherwise seized his funds.
Based on the facts alleged, McLane and the TCCO do not appear to be attaching,
levying, or seizing Barron's VA benefits. See Wash. State Dep 't of Soc. & Health Servs.
v. Guardianship Est. of Kejfeler, 537 U.S. 371,383 (2003) (describing "execution, levy,
attachment, or garnishment" as "legal terms of art [that] refer to formal procedures by
which one person gains a degree of control over property otherwise subject to the control
of another, and generally involve some form of judicial authorization"); 5 Wilson v. Sec'y,
Dep't of Corr., 54 F.4th 652,665 (11th Cir. 2022) (observing that§ 5301 does not define
"seizure" but that in 1935, when Congress added the word, the term meant '"[t]o take
possession of, or appropriate, in order to subject to the force or operation of a warrant,
order of court, or other legal process'" (quoting Webster's New International DictionmJJ
of the English Language 2268 (2d ed. 1935)).
Nor is the TCCO engaging in an attachment, garnishment, or levy through "legal
or equitable process." Barron admits that he pays the fee to avoid disciplinary action, and
he presents no claim that the TCCO has used a judicial mechanism or other form oflegal
process to gain control of his benefits. Cf Reedv. Taylor, 923 F.3d 411,413, 416~18
(5th Cir. 2019) (rejecting SVP's contention that requiring him to pay for GPS
5 In Keffe/er, the Supreme Court was interpreting 42 U.S.C. § 407, which protects Social Security
benefits~not VA benefits. See 537 U.S. at 375. But§ 407 and§ 5301 use similar language and both
relate to protection of government benefits. See Higgins, 293 F.3d at 691 ("recogniz[ing] that the
language used by Congress in protecting Social Security benefits in§ 407(a) is not precisely the same as
the words it employed in§ 530l(a)," but "its reach is essentially the same" (quoting Nelson v Heiss, 271
F.Jd 891, 895)). Because of the similarity in language and purpose, the undersigned finds cases
interpreting § 407 instructive.
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monitoring-when Social Security was his only source of income-or face criminal
prosecution violated§ 407, because "[a] threat of future action is not an 'exercise of some
sort of judicial or quasi-judicial authority to gain control over another's property'"
(quoting Keffeler, 537 U.S. at 386)).
The few cases discussing§ 5301 's application support the undersigned's
conclusion that McLane has not impermissibly calculated the fee based on Barron's VA
benefits or unlawfully seized or levied those benefits. In Nelson v. Heiss, the plaintiff
had authorized withdrawal of VA funds to pay for copies of his medical records and
dental appliances, but he did not have the funds to cover the expenses at the time,
resulting in the prison placing a hold on his inmate trust account. 	271 F.3d 891,893 (9th
Cir. 2001 ). The Ninth Circuit held that prison officials violated plaintiffs statutory rights
under§ 5301 by placing the hold. Id. at 896. In so concluding, the court rejected the
officials' arguments that plaintiffs consent or the fact that the expenses were for his
"maintenance and care" placed the hold outside § 530 l's prohibition on assignment,
attachment, or levy. Id. at 895-96. The court noted, however, that the only issue before
it was the overdraft/hold-it did "not opine upon[] whether the trust account program as
presently structured operate[ d] properly when there [were] funds in the account." Id. at
895 n.5. Barron does not allege TCCO officials have placed a hold on his trust account.
See Dkt. No. I.
Moreover, the Third Circuit held that prison officials' seizure of VA benefits in a
prisoner's trust account to pay a court-ordered fine violated§ 5301. Higgins, 293 F.3d at
685. In part, the court reached this conclusion because it found that the officials'
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collection of funds from the prisoner's account was a "levy"-i.e., a "seizure of property
to satisfy a judgment." Id. at 693. 	But here, Barron has not shown that TCCO levied or
otherwise seized VA funds from his trust account.
In Hawes, the Fifth held that a prisoner failed to state a claim under § 530 I where
his VA benefits were comingled "with sizeable deposits by a private individual, [making]
it ... impossible to know whether [a] medical co-payment was charged against funds that
originated from" the VA. 964 F .3d at 417. The Fifth Circuit expressly stated that
although the district court correctly granted summary judgment, it did "not endorse the
analysis of the magistrate judge or district court." Id. at 415. Thus, the Fifth Circuit's
holding appears limited to its conclusion that because the co-pay deductions could have
come from funds other than the VA benefits, the prisoner had failed to state a claim. See
id. at 415-17. Barron does not allege that he receives money from sources other than his
VA benefits, and his response indicates that any other funds he does receive are not
comingled. See Dkt. Nos. 1; 11 at 2; 13 at 2. Thus, the officials in Hawes "deducted" the
funds from the prisoner's account to pay for the co-pay, critical facts that distinguish
Hawes from the instant situation.
In sum, Barron's choice to satisfy cost-recovery fees from his VA benefits does
not violate§ 5301 because Barron has not shown that TCCO is attaching, garnishing, or
levying his benefits. 	Cf Fetterusso v. New York, 898 F.2d 322, 324-25, 327-28 (2d Cir.
1990) (holding that civilly-committed mental health patients who satisfied costs of care
and treatment using Social Security benefits did not violate§ 407(a) because they
voluntarily did so). Moreover, the calculation of the cost-recovery fee based on the
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amount Barron receives in VA benefits does not violate§ 5301. See Hawes, 964 F.3d at
417 (observing that§ 5301 does not prohibit "assets acquired from VA benefits [from]
be[ing] taken into account for purposes of determining whether a litigant is eligible for in
Jonna pauperis status").
The undersigned therefore recommends that the district judge grant McLane's
Rule 12(b)(6) motion and dismiss Barron's§ 5301 claims against McLane in her official
capacity for injunctive relief and against McLane in her individual capacity.
E. 	McLane is entitled to qualified immunity.
Even if Barron has shown a violation of his constitutional or statutory rights,
McLane asserts that she is entitled to qualified immunity on the individual-capacity
claims. Dkt. No. IO at 19-23. McLane argues that it was not clearly established that:
(!) "TCCO's cost-recovery fees or requirement that committed persons provide financial
information for the determination ofindigency constitute 'seizures' under the Fourth
Amendment"; (2) imposition of the fee "without an individualized hearing distinct from
the adjudication of Plaintiff as an SVP violates the Fourteenth Amendment"; and
(3) "assessment ofTCCO's cost-recovery fees from veteran's disability benefits or the
inclusion of such benefits in determining the value to be paid violates the anti-assignment
provision." Id. at 21-22.
"When a public official makes 'a good-faith assertion of qualified immunity,' that
'alters the usual summary-judgment burden of proof, shifting it to the plaintiff to show
that the defense is not available."' Joseph ex. rel. Est. of Joseph v. Bartlett, 981 F.3d
319, 329-30 (5th Cir. 2020) (quoting Orr v. Copeland, 844 F.3d 484,490 (5th Cir.
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2016)). 	Instead of the public official showing "an absence of genuine disputes of
material fact and entitlement to judgment as a matter oflaw," "[t]he plaintiff must show
that there is a genuine dispute of material fact and that a jury could return a verdict
entitling the plaintiff to relief for a constitutional injury." Id. at 330. "[A] plaintiff has
the additional burden to show that the violated right was 'clearly established' at the time
of the alleged violation." Id. at 329 (citing Morgan v. Swanson, 659 F.3d 359, 371 (5th
Cir. 2011) (en bane)). "This requires the plaintiff to identify a case-usually, a body of
relevant case law-in which an officer acting under similar circumstances ... was held to
have violated the Constitution." Id. at 330 (internal quotation marks and brackets
omitted) (quoting District of Columbia v. Wesby, 583 U.S. 48, 64 (2018)). "While there
need not be a case directly on point, the unlawfulness of the challenged conduct must be
beyond debate." Id. (internal quotation marks omitted) (quoting same). "This leaves the
rare possibility that, in an obvious case, analogous case law is not needed because the
unlawfulness of the challenged conduct is sufficiently clear even though existing
precedent does not address similar circumstances." Id. (internal quotation marks and
brackets omitted) ( quoting same).
Barron has not met his burden of pleading facts overcoming McLane' s defense of
qualified immunity. He has presented no case or body of cases clearly establishing the
violations as to any of his claims. See Dkt. Nos. 11, 13. Thus, he has not met his burden.
See Roque v. Harvel, 993 F.3d 325,334 (5th Cir. 2021) (explaining that a "plaintiff must
identify a case ... in which an officer acting under similar circumstances was he=ld to
have violated the Constitution[,]" and that while the plaintiff is not required to "find a
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case directly on point," "existing precedent must have placed the ... constitutional
question beyond debate." (internal quotation marks and citations omitted)); Morrow v.
Meachum, 917 F.3d 870, 874~75 (5th Cir. 2019) (emphasizing that courts "must frame
the constitutional question with specificity and granularity" and that "clearly established
law comes from holdings, not dicta"). Accordingly, McLane is entitled to qualified
immunity on the individual-capacity claims.
Given this conclusion, along with Barron's failure to plead a constitutional or
statutory violation, the Court need not reach McLane's assertion that Barron has failed to
show she was personally involved in a violation. Even so, the Court agrees that Barron
makes only conclusory allegations concerning McLane's purported implementation and
enforcement of an unlawful policy. See Dkt. No. 1 at 5 (claiming that McLane used
Barron's case manager "to ensure that [Barron] consistently paid the required fee" and
that "upon information and belief," McLane "set up the policy requiring Plaintiff and
other TCCC residents to pay 33% and later 25% of all income received). Further, even if
Barron had shown McLane was personally involved, he has not identified the policy that
McLane allegedly implemented that violated his rights. For these reasons, in addition to
those identified above, Barron's individual-capacity claims against McLane fail.
3. 	Recommendation
For the foregoing reasons, the undersigned recommends that the United States
District Judge (1) GRANT-in-part McLane's Rule 12(b)(l) motion and dismiss without
prejudice Barron's official-capacity claims against McLane for money damages and
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retrospective declaratory relief; and (2) GRANT McLane' s Rule 12(b)(6) motion and
dismiss with prejudice Barron's claims against McLane in her official capacity for
injunctive relief and those against McLane in her individual capacity.
4. 	Right to Object
A copy of these findings, conclusions, and recommendation shall be served on all
parties in the manner provided by law. Any party v,1ho objects to any part of these
findings, conclusions, and recommendation must file specific written objections within
fourteen days after being served with a copy. See 28 U.S.C. § 636(b)(l) (2016); Fed. R.
Civ. P. 72(b). To be specific, an objection must identify the specific finding, conclusion,
or recommendation to which objection is made, state the basis for the objection, and
specify the place in the magistrate judge' s Findings, Conclusions, and Recommendation
where the disputed determination is found. An objection that merely incorporates by
reference or refers to the briefing before the magistrate judge is not specific. Failure to
file specific written objections will bar the aggrieved party from appealing the factual
findings and legal conclusions of the magistrate judge that are accepted or adopted by the
district court, except upon grounds of plain error. See Douglass v. United Servs. Auto.
Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).
Dated: February 13_ , 2025.
AMANO 'AMY' R. BURCH
UNITED STATES MAGISTRATE JUDGE
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