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Kerr v. Davis ( 2021 )


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  • Case: 20-40255       Document: 00515976137            Page: 1      Date Filed: 08/12/2021
United States Court of Appeals
for the Fifth Circuit                                       United States Court of Appeals
Fifth Circuit
FILED
August 12, 2021
No. 20-40255
Lyle W. Cayce
Summary Calendar
Clerk
Kenneth Howard Kerr, III,
Plaintiff—Appellant,
versus
Lorie Davis,
Defendant—Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
No. 6:19-CV-198
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Proceeding pro se and in forma pauperis, Kenneth Kerr, III, Texas
prisoner #716805, appeals the dismissal of his
    42 U.S.C. § 1983
     complaint
against Lorie Davis, the Director of the Texas Department of Criminal
Justice-Institutional Division (“TDCJ”), for failure to state a claim upon
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited circumstances
set forth in 5th Circuit Rule 47.5.4.
Case: 20-40255      Document: 00515976137            Page: 2    Date Filed: 08/12/2021
No. 20-40255
which relief may be granted. Kerr alleged that Davis violated his rights under
the Fifth and Fourteenth Amendments by refusing to allow sex offenders,
like him, to take certain computer-related classes. He also moves to supple-
ment the record. That motion is DENIED. See Theriot v. Par. of Jefferson,
    185 F.3d 477
    , 491 n.26 (5th Cir. 1999).
We review de novo the dismissal of Kerr’s § 1983 complaint using the
same standard applicable to dismissals under Federal Rule of Civil Procedure
12(b)(6). See Praylor v. Tex. Dep’t of Crim. Just.,
    430 F.3d 1208
    , 1208 (5th
Cir. 2005). Although “pro se complaints are held to less stringent standards
than formal pleadings drafted by lawyers,” such complaints must nonethe-
less “plead enough facts to state a claim to relief that is plausible on its face.”
Bustos v. Martini Club Inc.,
    599 F.3d 458
    , 461−62 (5th Cir. 2010) (internal
quotation marks and citations omitted). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasona-
ble inference that the defendant is liable for the misconduct alleged.” Ash-
croft v. Iqbal,
    556 U.S. 662
    , 678 (2009).
There is no error in the dismissal. See
    id.
     With respect to Kerr’s due
process claim, a sex-offender’s exclusion from “vocational programs while
in prison does not implicate a liberty interest” for purposes of due process
because those restrictions “do not impose atypical and significant hard-
ship[s] on [the inmate] in relation to the ordinary incidents of prison life.”
Toney v. Owens,
    779 F.3d 330
    , 342 (5th Cir. 2015) (internal quotation marks
and citation omitted). Further, insofar as Kerr asserts that the prohibition
against participating in certain computer-related classes will cause him irre-
versible harm, his assertion is necessarily speculative and, in any event,
insufficient to implicate a liberty interest. See Coleman v. Lincoln Par. Det.
Ctr.,
    858 F.3d 307
    , 309 (5th Cir. 2017) (“[E]ven for pro se plaintiffs, . . . con-
clusory allegations or legal conclusions masquerading as factual conclusions
will not suffice to state a claim for relief.” (internal quotation marks and cita-
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Case: 20-40255       Document: 00515976137         Page: 3    Date Filed: 08/12/2021
No. 20-40255
tion omitted)).
Kerr’s equal protection claim likewise turns on his classification as a
sex offender. A challenged classification that neither involves a suspect class
nor impinges upon fundamental rights “‘is accorded a strong presumption of
validity.’” Flores-Ledezma v. Gonzales,
    415 F.3d 375
    , 381 (5th Cir. 2005)
(quoting Heller v. Doe,
    509 U.S. 312
    , 319 (1993)). Kerr’s classification in-
volves neither a suspect class nor a right or liberty protected by the Constitu-
tion. See Stauffer v. Gearhart,
    741 F.3d 574
    , 585−87 (5th Cir. 2014); Wottlin
v. Fleming,
    136 F.3d 1032
    , 1036−37 (5th Cir. 1998). Indeed, sex offenders are
not a suspect class for equal protection purposes. Stauffer, 741 F.3d at 587.
Thus, “any classification of convicted sex offenders is only subject to a
rational basis review.” Stauffer, 741 F.3d at 587. Kerr’s claim cannot survive
rational basis review because he has not alleged facts that would be sufficient
to show that there is no “reasonably conceivable state of facts that could
provide a rational basis for the classification.” Heller,
    509 U.S. at 320
    .
AFFIRMED.
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