violent predator act appellant mr brown alleges that the defendants violated his due process rights by subjecting him to punitive conditions of confinement and retaliated against him for exercising his first amendment right to complain about those conditions i'd like to start with the retaliation claim and then move on to the two separate due process claims one of which concerns the fifty five days that mr brown was confined in the cold springs jail and the other confinement system because it uses these facilities here on that part of the challenge or is it just to his specific commitment at this facility for fifty five days your honor there's two separate due process challenges one of them is specific to th time that mr brown spent at the cold springs jail the other challenge is to his confinement at the facilities and passo in fort worth that were then used to house sexually violent predators under texas commitment scheme again i'd like to start with the retaliation claim that if you prefer i start with the process we can go that route start wherever you like so with respect to retaliation i miss is the second argument in our brief but i'd like to start there because i think it's the most straightforward insofar as it involves direct evidence of retaliation on the part of the defendants specifically defendant basham who was then the facility administrator at the fort worth transitional center where mr brown was briefly held and then also defended taylor who was at the time the executive director of the office of violent sex offender management under this court's precedents a claim for retaliation requires a plaintiff to plead for elements first the exercise of a specific constitutional right the defendant's intent to retaliate against the plaintiff for exercising that right a retaliatory adverse act his complaint and this is it are always four ninety four complaint paragraphs twenty one through thirty that immediately after he made reference to filing a lawsuit against avalon corrections services mr basham made the decision to terminate him from the fort worth facility he further alleges and this is that are on a four ninety five complaint thirty three that immediately before he was taken to jail basham came to his room and told him that he would not tolerate mr brown causing problems in fort worth as he had in el paso that he had heard from officials in el paso that mr brown would be a problem and that he would not tolerate mr brown contacting avalon's home offices ar green he was arrested for violating the can conditions of his civil commitment what was that condition was that he was required to sign a form allowing him to be at the facility and also that he refused to follow a direct order of your line that mr brown filed grievances while he was in el paso and also later while he was in the cold springs jail and that it was because of those grievances that he was required to remain in the cold springs to sign the rules that's not correct that's not what the complaint alleges what the complaint alleges was that he was retaliated against because he exercised his first amendment right to file grievances the complaint is replete with those allegations are ok can you clear up this if it's not allegedly retaliatory arrest the basham in taylor their personal involvement what is it it's retaliation start mr brown was arrested and that arrest was said was so it was supported by probable cause and for that reason a retaliatory arrest claim under this court's precedent is not permissible however what mr but what mr basham did when he rejected mr brown from the facility was a was a retaliatory adverse act on its own because it came with it the possibility that mr brown would be prosecuted for a third degree felony for refute for failing to reside in a residential facility under contract with the office that it's rejection from the facility not being arrested and sent to the he was sent to deterrent county jail he posted bail in september and september thirteenth at that point he was released from the any confinement pending charges he was no longer a pretrial detainee as far as the texas criminal justice system was concerned however because of the defendant's retaliatory motives he was required to remain in jail he was kept in the cold springs unit of the tenth county jail rather than being allowed to return to the fort worth transitional facility that was because of mr bashings retaliatory decision to terminate him from that facility and not allow him to return and mr taylor's decision to require him to remain in jail at paragraph fifty two of the complaint mr brown alleges that he was told by ms taylor subordinate you will remain in jail until you learn to quit filing grievances and lawsuits that is a clear statement of retaliatory intent on the part of the defendants the retaliation retaliatory adverse act being that he was required to remain in the terrine county jail i would add that statement was made after mr brown was acquitted he was under no pending charges and he was not confined in the terror in the cold springs jail under any order by any court considering criminal charges that is the basis of the retaliation claim texas argument he was rich had his own hit that his claim is only that he was retaliated against because you refused to sign a rule is simply irreconcilable with the allegations of the complaint as we described on page five or ten of our reply brief the complaint is replete with allegations that he was rehired against because he complained about the conditions of his confinement because he filed grievances because he pursued legal action because he contacted the avalon home office in oklahoma and i would add also that in the exhibits to the complaint and you can find you can find these at  the jail so his remedy at that point was to file a claim against the defendants for italian and against him and i don't understand this court's precedents to excuse a retaliatory decision to put someone in jail or to terminate them from a facility because there an allowable administrative procedure there were procedures in place for him to complain about the conditions of his confinement he followed those procedures he found them ineffective he also tried other avenues to talking faster than i can he honor he filed grievances concerning his conditions of confinement all right so what happened to those grievances they were not addressed by ok they just languished as he describes and you can find this in letters that he sent to avalon  believe it's at r o a five thirty three to five thirty six he describes filing grievances having them languish he describes the grievance process being inadequate for that reason he filed he sent letters to the president of avalon and he alleges that it was those grievances and letters that were the reason that he was rejected from the fort worth facility in fact that's what he was told by defendant bashan i will not tolerate you contacting the avalon home office under any circumstances again that's at paragraph thirty three of the complaint so the state's argument that his that he has not alleged a claim for retaliation for a protected first amendment right cannot be reconciled with what's in the complaint the district court's decision on that on that basis is similarly inadequate complaint to the management of avalon concerning his conditions of confinement like court was that he thought that the living conditions were inadequate that he wasn't getting adequate treatment  did your honor i don't have a directly in my head exactly what he alleged i believe he made a comment about not having adequate nutrition there not being a supply of fruits and vegetables is things that are not things that you would expect but they are specific yes he's made those complaints locally he made them and you go again you can see this in our earliest five thirty five thirty three to five thirty six he describes having made them through the grievance procedure available to him but then finding that finding them unaddressed then reaching out to the avalon home office in oklahoma city and addressing their the yes i think that's a fair way of describing it yes that he felt that because his grievances weren't being addressed he even says at one point in one of those letters this is my only avenue his other complaint about the grievance procedure was that it applied to prisoners and parolees because this was a multi use facility in el paso and as a civil he committed person the grievance procedure didn't necessarily apply to him so there wasn't a separate grievance procedure for people in this unique program that was his that was his claim yes that was one of them is it true or not your on the record the record on record doesn't say everything in the record suggests that that is correct but i i don't know so on this inappropriate continued confinement at the cold springs jail because of the grievances the celebration of this yes that implicates basham taylor and anderson trying to figure out who are the people that yes men would stay if you're correct with respect to retaliation it implicates mr basham but not risk with respect to the due process that separate due process claim because mr basham was not responsible for his confinement there though if the individual defendants are responsible for his confinement and called springs are ms taylor who made the deliberate decision to house him there if mr if what mr brown was told in his complaint is to believe to be believed they went to his committing judge in montgomery county and got an order requiring him to be in cold springs that was a deliberate choice on the part of the office he was in constant contact with the office during his time there they were aware that he was there and they were aware that he was there for thirty five days following circumstances all put confined prisoners are confined pursuant to a court order but the conditions of their confinement must comport with due process standards and their custodians are responsible for housing them in conditions that are consistent with due process standards because m recommitted person and not someone who is serving a criminal sentence he was required to be held under conditions that were as the supreme court said more considerate than his criminal criminal counterparts and they had to be very reasonable relation to the purposes of his commitment which were supervision and treatment his his conditions and cold springs did not meet that constitutional standard and for that reason again defending taylor executive director of the opposite sex offender management is responsible sheriff anderson who is custodian of the time is responsible and by in from sheriff anderson county is responsible because sheriff anderson is a policy maker under texas law as this court has recognized several of its precedents for in the area of law enforcement making the county liable ok does this suit right now and i don't know i've already asked you something similar does it challenge the amended sexually violent predator act on its face as being unconstitutional it does not several responses your honor first of all the statu punitive in other words the legislature changed the statute from that which it was when the used to texas supreme court upheld it that opened the door to the possibility that it would be in administered in a punitive way but it did not necessarily guarantee that so our challenge not suggest that the statute on its face is unfair not trying to get it say well in right commitment to fisher said that the old stuff it was ok but this new one is not that's not an argument here you're only talking about the specific treatment at these two facilit you're asking only for monetary damages are you asking for a job to report to you what do you want us to do or what would you have us do at this stage all that's necessary is to reverse the decision dismissing the complaint that the relief sought is monetary damages because of the change in the legislators could there was a change in the legislative scheme in two thousand and fifteen mr brown is recommitted under a new commitment order so there is no there is no further request for  and it was dismissed for failure to state a claim for the reasons we explained that was incorrect thank you screening provisions where a district court is required to dismiss a complaint that is frivolous that fails to state a claim or that seeks monetary relief against immune defendant right but i'm just not sure it's appropriate for you to be considered a because you have a stake in the case and so to me it seems that you were actually appearing for texas today i'm not trying to trick you but this is very troubling to me do you understand that so are you appearing for texas here today imre presume you are representing texas attorney general yes and the claims are against texas officials that's right so so we are representing the state of texas in our interest is that otherwise the putative defendants would would not be represented also the we have an interest in presenting to this court that the the claims be limit or this court's inquiry be limited to the claims that were properly presented specifically there is no constitutional like a friend of the court in that you you you you have a i mean you're not an enemy we're not you know do you understand what i'm saying i do it you don't have you you have a stake your client has a stake in this case your honor it's my understanding that these parents is our common especially with the time the posture of a section nine fifteen dismissal of a common doesn't make it correct your honor i'm not i'm not prepared to well i would like for each of you to submit a twenty eight day if you want to i'm not forcing you to continue your argument but if you w continue then i need to twenty eight j from both sides as to whether texas has appeared in this matter and because i don't i don't see how you can make arguments on behalf of  client and be called to be a friend of the court in the tech in the context but you're welcome to make arguments if you choose well i'll continue on you know with respect to the day letter in response to this court's encourage thank you and the other side can do so as well and you can do so by monday thank you so with respect to the claims properly before this court you know  the dismissal is proper because brown did not stay viable claims under section one thousand nine hundred three against individual defendants for monetary relieved the retaliation claim i understand is two claims first against basham and taylor but  specifically i want to clarify the facts in this case brown's contention is that taylor initiated the arrest of brown as the adverse the alleged adverse act but it's clear if you take his allegations as true  there's no act or participation by taylor with respect to the documents there brown has attached to his own first amended complaint he specifically noted that washington contacted d p s d p s found that there was probable cause for his arrest on the basis that he violated a commitment civil commitment condition and that was that he failed to sign the intake package you know for his stay at the facility and secondly that a grand jury indicted mr brown and it seems conceded on appeal that the arrest is not the alleged adverse act it seems to be the second claim that washington made a statement that brown would remain at cold springs facility until he learned to stop filing grievances however that allegation is not even made about a defendant in this case and so there is still no allegation that director taylor had any awareness or involvement in brown stay at cold springs which also was not improper under the statute brown's allegations are that he was there under an order from his committing court and the statute itself identifies that s p p can remain at a facility that is under contract with the agency and so his order of commitment the record on appeal five twenty one identified that he is required to be unsupervised housing and he could not be transferred from that facility without authorization from his commitment court so there is no action that he was confined there on the basis of anyone's retaliatory motive or intent he was posted he was there after he posted bond and after he was acquitted yes your honor you're saying he can be just kept there forever the called springs jail so he was at the cold springs facility while he was awaiting transfer but when he posted bond in september he was not entitled to release to be free he was under an order of commitment but became he be kept in the cold brings jail indefinitely without any violation of his rights so your honor he may not be kept indefinitely however he kept him in the conditions of his confinement have to be related to the purposes for which he was committed and he was confined following the posting of bail until his criminal trial by the time he was acquitted october third by october eleventh the logs he supplied our way one one three one zero seven show he was receiving sex offender treatment and counseling he was permitted to leave the facility to receive medical treatment all of the conditions were consistent with the level of supervision she identifies that he was on at the time you're saying he could be kept at the cold springs jail as long as he's having those treatment con honor so long as the facility was you know within these statutes implementation and was not a violation of due process if if proximity to a prison setting or a jail setting or proximity to transfer was being arranged he identified at r o eighty that there was the issue was availability of housing plus his treatment had to be cordoning so he was there following his by october third he was acquitted and by november  seventh he was transferred to the south texas transitional center the administrative delay cases there aside all were all related to individuals who were entitled to release from a facility but he was required by his order of commitment to be unsupervised housing so he was retained to at the cold springs facility until he was transferred to the south texas transitional center how do you explain that period of time in the  identifies that show the levels of supervision is that are ok three thirty two and those who are at higher levels who have obtained treatment and progress in the program are allowed to leave their facility of residence for other things including seeking employment honor under kansas b hendricks the record there showed that sexually violent predators were housed in a psychiatric wing of a prison hospital the record there also showed that prisoners and civil committees were treated the same under the statu te the standard to be reviewed yes that's under i'm kansas city hendrix and then in selling the washington the washington statute that was it is to was a situation where the sexually violent predator facility was located within the department of corrections and lot on the department of corrections for essential services and so saying a place is secure saying a place has you know elements of a prison like setting it does not state a constitutional conditions of confinement and the duration of confinement bear some reasonable relation to the act to the purpose for which persons are committed in this case the texas supreme court has identified that the acts purpose is towards long term treatment and supervision of a legislatively identified group of extremely dangerous individuals who have been civilly committed because of a behavioral abnormality that makes them predisposed to commit future predatory acts of sexual and that was the basis that you retained him in jail is to allow him to go through the treatment facilities and you're saying that it would make no difference constitutionally warmer than alcohol if he had been transferred from the jail to the halfway house i'm stating that mr brown's complaint identifies new condition that is without purpose that is arbitrary or does not connect to the purposes of the statute and so to the extent that there was a preferable facility that doesn't make an as applied implementation based challenge to the statute and that the nature of the statute proper  selling the young also squarely addresses that issue as an unworkable proposition justice scalia's concurrence noted that just as more compassionate implementation can't make  implementation cannot make a civil statute punitive and to the extent he is the texas courts have rejected these claims as to the nature of the confinement conditions being  and as applied implementation based challenge should not be the basis for up ending the legislative scheme that's been put in place that has oriented towards the legitimate non punitive goals of long if he if there was absolutely no perceptible basis to say that his conditions had changed from the time that he was acquitted until the time that  unleashed to go back to the head for i'm not i'm not sure that it would but in this case he was receiving the treatment that was required he was permitted to leave for the reasons that were consistent with his with his particular order of commitment and so the fact that was not available to him for the time that he was serving before he was acquitted that was not available while he was a pretty trial detainee while he was awaiting his criminal trial amended complaint when i went there one of seven shows that he was leaving the facility on tuesdays and thursdays to attend sex offender treatment and counseling and i believe their visits to the v a and one that i can only presume is to meet w brief that they were putting at issue the two thousand and fifteen version of the statute there are several points at which they say today the act as applied is punitive and now in its current in iteration it  you know we don't think that's properly before the court nor is the constitutional challenge because brown's claim is for monetary relief that all of this issue about whether or not the district court erred in not letting him in his complaint are you taking a position on that so the district court's dismissal was proper under the screening provisions of section one nine hundred fifty brown received substantial guidance and support from the district  that the dismissal was proper that that not allowing him to a min was appropriate that's what i'm talking about amending not whether or not on the existing claims just we've talked about dismissal on the existing claims talking about the failure to allow him to amend at a time where no one could be prejudiced because no defendant had been served and no defendant in appeared and he's trying desperately to say he's bringing official capacity and trying to get what the tearing county into t is supposed to be called correct why why would a denial of a motion to are you taking a position on that it was an abus and they seek relief in the form of money damages he is not making a request for prospective injunctive relief there is no request for a declaration there is no allegation of on on going constitutional conduct by any individual acting under state law all of that really if that is retrospective would be barred by the eleventh amendment against the defendants in their official capacity as and that is a point that the district court made in advising brown with bringing his amended complaint you identified that your claims for money a monetary relief are going to be barred unless and then the court the district court explained the exception stated in ex parte young and brown was only asked to bring specific claims against  defendants identify the capacities in which he would see them and then provide the factual underpinnings for his allegations so it was then on brown to raise those claims and it's not  discretion and disposed of freely in yes even under the foeman standard denial of leave to amend to make a few trial amendment is not an abuse of discretion nor was this a case where the district court dismissed without reason or explanation his order identified the district court's order identified that the claims were not going to be able to go forward and that that was the basis of not allowing in the footnote yes there is a footnote as well as yes your honor anything else and so i think the to the extent that brown never alleged a particular defendant's causing the alleged  adverse act with respect to his retaliation claim and moreover he doesn't identify specific defendants causing him an unconstitutional deprivation the district court properly  speculative level that should be remanded for further consideration brown's allegations of taken as true and the documentary support to his first amended complaint do not create a viable section  had like to address the cold springs issue because i think there's a significant amount of confusion with respect to exactly how mr brown was held and under what capacity to be clear at no time during his confinement called springs was mr brown held pending trial on his criminal charges he was released on bond as far as the cut texas criminal justice system was concerned he could have been released i'm not suggesting that he should have been released but at that point the only standard relevant to can his conditions of confinement were the standards of pluggable to a civil he committed person the state admits that through the majority of the time that he was a cold springs he was not given sex offender treatment and again that's our way one hundred three one zero seven showing that he was not given jail until he posted bond on september thirteenth however we spent about seven months on september thirteenth he was transferred to the cold springs jail yes his criminal trial had not yet occurred but he was not detained pending trial he was released pending trial he was only detained because he was in greenwich c t relate when did he make bail and rich released from the criminal trial criminal charges on september thirteenth retaliation and i would just add that the state's position is essentially we can keep someone called springs indefinitely as long as we're providing treatment and there's no difference and i would just like to like to point out what mr brown alleges and in his complaint about his treatment  he says he was classified as an inmate he was made to wear a jail uniform he was subject to jail rules and jail disciplinary procedures he was in fact found in violation of jail rules just because he put a blanket over his face because he was cold his mail and phone calls were censored and he was living amongst people who were charged with and convicted of crimes the state argues not only is that constitutional but those allegations do not even state you claim are due process filings and i would just like to briefly address the state's arguments with respect to sealing because i think that case actually very clear as to why this is the appropriate sealing concerned an ex post facto and double jeopardy challenge in haiti the court said in that case was no it's not appropriate when a state supreme court has deemed a civil commitment scheme civil for folks to then s and say the conditions under which i'm actually being held are punitive and to seek relief to seek release from their civil commitment on the basis of punitive conditions but the court explicitly said that it was not considering how as applied conditions would  would affect a due process challenge and also noted that the conditions of that petitioner was living under were the subject of a section one hundred eighty land and were in fact that center was in fact operating under an injunction that's at page two sixty five to sixty six