No Constitutional Right to External Agency Investigations: Fifth Circuit Upholds TCCO-Centered Grievance Channel for Civilly Committed SVPs

Introduction

In Dunsmore v. Muth, No. 25-50047 (5th Cir. Oct. 7, 2025), the United States Court of Appeals for the Fifth Circuit affirmed the dismissal—at the in forma pauperis screening stage—of a pro se civil-rights complaint filed under 42 U.S.C. § 1983 by a civilly committed sexually violent predator (SVP). The plaintiff, Richard A. Dunsmore, alleged that the Texas Department of Family Protective Services (TDFPS) and the Texas Health and Human Services Commission (THHS) failed to investigate his reports of misconduct and abuse at the Texas Civil Commitment Center (TCCC). He pleaded violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment and invoked the “Bill of Rights for Mental Health Patients,” 42 U.S.C. § 9501.

The district court (W.D. Tex., No. 1:24‑CV‑1426) dismissed the complaint without prejudice under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim and concluded amendment would be futile. On appeal, Dunsmore argued that he had adequately pled equal protection and due process violations, that he should have been allowed to amend, and that the district judge harbored bias. He also moved for appointment of counsel for the appeal.

The Fifth Circuit, applying de novo review, affirmed across the board and denied the motion to appoint counsel. Judge Higginson authored the opinion for a panel including Judges Southwick and Wilson.

Summary of the Opinion

• Equal Protection: The court held that Texas may rationally channel TCCC residents’ complaints through the Texas Civil Commitment Office (TCCO) grievance process rather than through TDFPS or THHS investigations. Because the plaintiff did not allege membership in a protected class and because the classification had a rational basis, the equal protection claim failed.
• Procedural Due Process: The plaintiff failed to identify a protected liberty or property interest in having specific agencies (TDFPS/THHS) investigate his complaints. General mission statements and policies authorizing investigations do not create such interests. Without a protected interest, no procedural due process claim lies.
• Substantive Due Process: Alleged failures by TDFPS/THHS to investigate and delayed responses to calls did not “shock the conscience” and, at most, suggested negligence—insufficient for substantive due process liability.
• Leave to Amend: The district court did not err in denying leave to amend because amendment would have been futile; the complaint’s defects were legal, not factual. The dismissal was without prejudice, permitting refiling against appropriate defendants in an appropriate venue.
• Judicial Bias/Recusal: Referring to the plaintiff as an SVP was relevant context and not evidence of personal bias. No recusal was warranted.
• Appointment of Counsel: No “exceptional circumstances” justified appointing counsel in a civil rights appeal that was being affirmed, particularly where the plaintiff indicated he had retained counsel for related matters.

Analysis

Precedents Cited and Their Influence

• Pleading and Screening Standards:
  • Watkins v. Three Admin. Remedy Coordinators of the Bureau of Prisons, 998 F.3d 682 (5th Cir. 2021) and Nyabwa v. Unknown Jailers at Corr. Corp. of Am., 700 F. App’x 379 (5th Cir. 2017) (per curiam) – establish de novo review for dismissals under § 1915(e)(2)(B)(ii) and Twombly/Iqbal plausibility requirements at screening.
  • Ashcroft v. Iqbal, 556 U.S. 662 (2009) – requires factual content permitting a reasonable inference of liability; conclusory assertions do not suffice.
  • Coleman v. Lincoln Par. Det. Ctr., 858 F.3d 307 (5th Cir. 2017) (per curiam); Taylor v. Books A Million, Inc., 296 F.3d 376 (5th Cir. 2002) – pro se pleadings receive liberal construction, but courts do not accept naked legal conclusions as facts.
• Equal Protection (Rational Basis):
  • Gibson v. Tex. Dep’t of Ins., 700 F.3d 227 (5th Cir. 2012) – frames equal protection claims: either protected-class discrimination or “class-of-one” requiring no rational basis for differential treatment.
  • Heller v. Doe, 509 U.S. 312 (1993) – sets deferential rational-basis standard: any “reasonably conceivable” facts supporting a legitimate state interest defeat a claim.
• Procedural Due Process (Protected Interests):
  • Jordan v. Fisher, 823 F.3d 805 (5th Cir. 2016); Wilkinson v. Austin, 545 U.S. 209 (2005) – two-step: identify a protected liberty or property interest; then assess adequacy of procedures.
  • Richardson v. Tex. Sec’y of State, 978 F.3d 220 (5th Cir. 2020) – explains constitutional versus state-created liberty interests; property interests derive from independent sources like state law.
  • Sandin v. Conner, 515 U.S. 472 (1995) – state-created liberty interests are generally limited to freedom from restraint imposing atypical, significant hardship.
  • Bd. of Regents v. Roth, 408 U.S. 564 (1972) – property interests stem from state law-defined entitlements, not the Constitution itself.
• Substantive Due Process:
  • Franklin v. United States, 49 F.4th 429 (5th Cir. 2022); Collins v. City of Harker Heights, 503 U.S. 115 (1992) – substantive due process polices egregious executive abuses regardless of procedure.
  • McClendon v. City of Columbia, 305 F.3d 314 (5th Cir. 2002) (en banc) (per curiam) – requires culpability beyond negligence; conduct must “shock the conscience.”
  • Cnty. of Sacramento v. Lewis, 523 U.S. 833 (1998) – articulates the “shocks the conscience” threshold.
• Preservation of Issues on Appeal:
  • United States v. Joseph, 102 F.4th 686 (5th Cir. 2024); F.D.I.C. v. Mijalis, 15 F.3d 1314 (5th Cir. 1994) – issues not raised with sufficient clarity below are not addressed on appeal.
• Leave to Amend and Screening Procedure:
  • Brown v. Brown, 842 F. App’x 948 (5th Cir. 2021) (per curiam); Bazrowx v. Scott, 136 F.3d 1053 (5th Cir. 1998) (per curiam) – dismissal without leave to amend is harmless if amendment would be futile, especially when dismissal is without prejudice.
  • Aucoin v. Terrebonne Par. Sheriff’s Off., No. 21-30322, 2022 WL 16657429 (5th Cir. Nov. 3, 2022) (per curiam) – no hearing is required before a § 1915(e) dismissal.
• Judicial Bias/Recusal:
  • United States v. Scroggins, 485 F.3d 824 (5th Cir. 2007); Phillips v. Joint Legis. Comm. on Performance & Expenditure Rev. of State of Miss., 637 F.2d 1014 (5th Cir. Unit A 1981) – recusal requires personal (not judicial) bias; adverse rulings alone rarely justify recusal absent extreme antagonism.
• Appointment of Counsel in Civil Cases:
  • Ulmer v. Chancellor, 691 F.2d 209 (5th Cir. 1982) – counsel appointed only in “exceptional circumstances.”
  • Williams v. Ballard, 466 F.3d 330 (5th Cir. 2006) (per curiam) – reinforces high bar; denial appropriate where claims are being dismissed.

Legal Reasoning

1) Pleading Standards and IFP Screening

The Fifth Circuit reviewed de novo the dismissal under § 1915(e)(2)(B)(ii). Applying Iqbal’s plausibility threshold, the court underscored that even pro se complaints must allege concrete facts connecting defendants to a violation of a cognizable right. Conclusory assertions—e.g., “refusal to investigate violated my rights”—do not suffice without factual content and a legally recognized right requiring such an investigation.

2) Equal Protection

The plaintiff did not claim membership in a protected class; his argument was a “class-of-one” theory: TCCC residents should be treated like “other Texas citizens” who can complain to TDFPS/THHS. The court held he is not “similarly situated” to the general public because he is civilly committed as an SVP and subject to TCCO oversight and procedures. Moreover, even if similarly situated, Texas has multiple “reasonably conceivable” bases to channel TCCC complaints into the TCCO grievance system:

• Streamlining and centralizing complaints to spot patterns specific to TCCC.
• Relying on reviewers with facility-specific expertise.
• Resource constraints and role delineation within TDFPS/THHS.

These legitimate interests satisfy rational basis review under Heller v. Doe. Consequently, the equal protection claim failed.

3) Procedural Due Process

Procedural due process requires, first, a protected liberty or property interest; second, a deprivation; and third, inadequate procedures. The opinion found the claim failed at step one: there is no constitutional or state-created interest in compelling a particular state agency to investigate complaints. The plaintiff’s reliance on mission statements or general policy authorizations did not transform agency discretion into an individual entitlement.

The plaintiff referenced several harms (e.g., a clerical error causing monetary loss; untreated eye injury; unclean medical equipment; denied medication; nonstandard care). The court noted:

• Those medical-care allegations were not pled against these defendants and belong, if at all, in a different § 1983 action against appropriate actors in the proper venue.
• Vague references to “extortion” were not adequately pled, and, in any event, the complaint did not connect TDFPS or THHS to any actionable deprivation.
• Arguments raised for the first time on appeal (including conspiracy theories under 42 U.S.C. §§ 1985 and 1986 and a later “wrongful death” report) were not considered due to preservation rules.

Although the plaintiff stated that civil commitment constitutes a significant liberty deprivation, he did not challenge the validity of his commitment in this case, nor did he argue that the State’s procedures for civil commitment are inadequate. Thus, no procedural due process claim was stated.

4) Substantive Due Process

Substantive due process polices only the most egregious executive abuses—conduct that “shocks the conscience.” The complaint’s core grievance was non-investigation or delay by TDFPS/THHS and alleged program stalling by a TCCO official. The court held these allegations, even liberally construed, amounted at most to negligence or bureaucratic delay, which are insufficient to trigger substantive due process protections under McClendon and Lewis.

5) Denial of Leave to Amend; No Hearing Required

The district court dismissed without prejudice and explained that “further factual development” could not cure the complaint’s legal defects—principally, the absence of a right to a particular agency investigation and the presence of rational bases for the TCCO grievance channel. The Fifth Circuit agreed that amendment would be futile and reiterated that no hearing is required before dismissing an IFP complaint under § 1915(e).

6) Alleged Judicial Bias

The plaintiff argued the district court prejudiced the case by repeatedly referring to him as an “SVP.” The Fifth Circuit rejected this, explaining the label’s relevance to the equal protection analysis and finding no personal bias as required for recusal.

7) Appointment of Counsel

The court denied the motion to appoint counsel, citing the “exceptional circumstances” standard. Because the court affirmed dismissal, and because the plaintiff represented that he had retained counsel for related litigation about TCCC and his underlying convictions, the high threshold for appointed counsel was not met.

Impact and Implications

1) Clarifies No Right to a Particular State Agency Investigation

This opinion squarely confirms that neither the Fourteenth Amendment nor general agency mission statements create a personal entitlement to have TDFPS or THHS investigate complaints from civilly committed SVPs. Plaintiffs seeking federal relief must identify a cognizable interest (constitutional or state-created) and connect it to the defendants; “failure to investigate” by a non-custodial agency rarely suffices.

2) Endorses Rational Basis for Channeling SVP Grievances Through TCCO

The court’s equal protection analysis carries a practical administrative law lesson: states can rationally centralize grievance procedures for specialized populations (e.g., SVPs) within the agency most knowledgeable about the relevant facility and program (here, TCCO). Future “class-of-one” challenges to such channeling are unlikely to succeed without robust factual showings undermining every conceivable rational basis.

3) Procedural Due Process Claims Must Start with a Protected Interest

By rejecting a claimed liberty/property interest in an agency investigation, the opinion underscores a recurring principle: due process does not constitutionalize discretionary investigative frameworks. Litigants must either:

• Identify a concrete entitlement arising from law or policy that meaningfully limits official discretion, or
• Target the underlying constitutional violation (e.g., medical indifference, unsafe conditions) against the actors responsible for it, rather than suing separate agencies for not investigating.

4) High Bar for Substantive Due Process

The Fifth Circuit reiterates the stringent “shocks the conscience” standard and the insufficiency of delays or non-responsiveness to plead substantive due process claims. This will continue to narrow the path for plaintiffs attempting to constitutionalize generalized agency inaction.

5) Procedural and Appellate Practice

• IFP Screening: Courts may dismiss sua sponte without a hearing when complaints fail to meet Iqbal’s plausibility threshold.
• Futility Controls Leave to Amend: Where defects are legal, not factual, denial of leave to amend is typically affirmed—especially when dismissal is without prejudice.
• Issue Preservation: New facts and theories raised for the first time on appeal (including post-judgment events or new statutory theories like §§ 1985/1986) will not be entertained.
• Recusal Standards: Adverse or descriptive judicial references tied to case context do not show personal bias.
• Appointment of Counsel: Absent exceptional circumstances, particularly where dismissal is affirmed and private counsel has been obtained elsewhere, appointment is unlikely.

6) What the Court Did Not Decide

• Whether 42 U.S.C. § 9501 creates enforceable rights under § 1983 (the court disposed of claims on other grounds).
• The adequacy of medical care or specific conditions at TCCC—those claims were not properly pled against these defendants and must be brought, if at all, against appropriate actors in the correct venue.
• Validity of the plaintiff’s civil commitment, which he is litigating separately.
• Any Eleventh Amendment or sovereign immunity issues; the dismissal rested on failure to state a claim.

Complex Concepts Simplified

• Equal Protection (Class-of-One): You can claim unequal treatment even if you’re not in a protected class, but you must show you were intentionally treated differently from truly similar people and that the government lacks any rational reason. If any hypothetical, sensible reason exists, your claim fails.
• Procedural Due Process: Not every disappointment with government process triggers due process. First, identify a right the law actually guarantees you (like an entitlement to certain benefits). Only then can you argue the procedures for protecting that right were inadequate.
• Substantive Due Process: This protects against extreme government misconduct. Think of conduct that is so brutal or arbitrary that it offends basic fairness. Ordinary negligence or bureaucratic delay does not qualify.
• IFP Screening: When you file without paying fees, the court screens your case early. If your complaint lacks factual detail or fails to allege a recognized legal wrong, the court can dismiss it quickly, even without a hearing.
• Futility of Amendment: If the problem with your case is legal (e.g., no law creates the right you claim), adding more facts won’t help. A court can deny amendment in those circumstances.
• Recusal: Judges must step aside if they have a personal bias. But disagreement with a judge’s rulings—or the judge’s use of accurate descriptors relevant to the case—does not mean the judge is biased.
• Appointment of Counsel: In civil cases, courts rarely appoint lawyers. You generally need to show “exceptional circumstances,” such as particularly complex legal issues combined with an inability to present your case.

Conclusion

Dunsmore v. Muth articulates and applies settled constitutional principles to the specialized context of civil commitment at TCCC. The Fifth Circuit held that:

• There is no constitutional or state-created right to have TDFPS or THHS investigate facility complaints from civilly committed SVPs.
• Texas’s choice to channel those complaints through TCCO is rational and passes equal protection scrutiny.
• Absent a protected liberty or property interest—beyond generalized expectations of agency investigation—no procedural due process claim lies, and alleged delays or non-responses do not meet the “shocks the conscience” threshold for substantive due process.
• Where defects are legal and dismissal is without prejudice, courts may deny leave to amend; no hearing is required at IFP screening.
• Allegations of bias must show personal animus, not just case-relevant labels or adverse rulings; appointment of counsel is unwarranted absent exceptional circumstances.

The opinion’s practical message is twofold: channel complaints through the procedures designed for the setting (here, TCCO’s grievance system), and when invoking § 1983, identify and plausibly plead a legally protected interest and concrete facts tying the correct defendants to its deprivation. For civilly committed individuals and their advocates, the decision provides a roadmap for structuring viable claims—targeted at responsible actors, in the proper venue, and grounded in recognized rights—while foreclosing stand-alone constitutional challenges to a state’s decision not to open additional investigative lanes through other agencies.