IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-11644

CLARENCE D. BROWN, 

 Plaintiff – Appellant,

v.

ALLISON TAYLOR, In Her Official and Individual Capacity as Executive 

Director, Office of Violent Sex Offender Management; DIANA LEMON, In 

Her Official and Individual Capacity as Program Specialist/Case Manager 

Office of Violent Sex Offender Management; BRIAN COSTELLO, In His 

Official and Individual Capacity as President, Avalon Correctional Services, 

Incorporated; GREG BASHAM, In His Official and Individual Capacity as 

Facility Administrator, Avalon Correctional Services, Incorporated; CARLOS 

MORALES, In His Official and Individual Capacity as Facility 

Administrator, Avalon Correctional Services, Incorporated; TARRANT 

COUNTY; MONTGOMERY COUNTY; DAVID CROOK, In official and 

individual capacity as agents of the Texas Department of Public Safety; 

MANUEL SANCHEZ, In official and individual capacity as agents of the 

Texas Department of Public Safety; JOSH BURSON, In official and 

individual capacity as agents of the Texas Department of Public Safety, 

 Defendants – Appellees.

Appeal from the United States District Court

for the Northern District of Texas

United States Court of Appeals

Fifth Circuit

FILED

December 12, 2018

Lyle W. Cayce

Clerk

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Before JOLLY, ELROD, and WILLETT, Circuit Judges.

PER CURIAM:

Clarence Brown filed a pro se complaint under 42 U.S.C. § 1983, seeking 

damages for his mistreatment at various civil commitment facilities and a 

county jail. In 2016, we vacated the district court’s sua sponte dismissal of 

Brown’s complaint and remanded. Brown now appeals yet another sua sponte

dismissal, as well as the denial of leave to further amend his complaint. For 

the following reasons, we AFFIRM in part, VACATE in part, and REMAND.

I.

A.

Because this case concerns Brown’s civil commitment under the Texas 

Sexually Violent Predator Act (SVPA) between 2011 and 2012, we begin by

briefly explaining the SVPA’s background. 

In 1999, the Texas Legislature created a civil commitment scheme to 

ensure “the long-term supervision and treatment” of “a small but extremely 

dangerous group of sexually violent predators” with “a behavioral 

abnormality . . . that makes [them] likely to engage in repeated predatory acts 

of sexual violence.” Tex. Health & Safety Code Ann. § 841.001 (West 2017). 

The SVPA required civilly committed persons to “reside in a particular 

location” and undergo “outpatient treatment and supervision” coordinated by 

the Texas Office of Violent Sex Offender Management (OVSOM). Sexually 

Violent Predator Act, 76th Leg., R.S., ch. 1188, § 4.01, secs. 841.081 and 

841.082, 1999 Tex. Sess. Law Serv. Ch. 1188 (West) (amended 2003, 2015)

(current version at Tex. Health & Safety Code Ann. §§ 841.081, 841.082). 

Moreover, those individuals needed to comply with the “specific course of 

treatment” provided by the office. Id. § 4.01, sec. 841.082(a)(4). Failure to 

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comply with this requirement was punishable as a third-degree felony.1 Id.

§ 4.01, sec. 841.085(a).

The Supreme Court of Texas upheld the constitutionality of the original 

SVPA in In re Commitment of Fisher, 164 S.W.3d 637 (Tex. 2005). The court 

highlighted that the SVPA was less restrictive than other states’ schemes as it 

permitted civilly committed persons “to live at home with their families.” 

Id. at 652. Although the court had concerns with the “severe criminal 

penalties” for violations, it concluded that the SVPA’s civil commitment 

scheme was “rationally connected” to the non-punitive purposes of supervision 

and treatment of civilly committed persons. Id. at 652, 656. 

After the Fisher decision, the Texas Legislature amended the SVPA to 

require civilly committed persons “to reside in a Texas residential facility 

under contract” and to comply with “all written requirements imposed by a

case manager.” Act of June 17, 2011, 82d Leg., R.S., ch. 1201, § 8 (amended 

2015) (current version at Tex. Health & Safety Code Ann. §§ 841.082(a)(1),

(a)(4)); see also Wilson v. Office of Violent Sex Offender Mgmt., 584 F. App’x 

210, 212 (5th Cir. 2014). The Texas Legislature, however, detected several 

problems with the operation of the SVPA. First, OVSOM’s “[h]orrible

mismanagement” of supervision, treatment, and contractors led to a “growing 

crisis.” See Mitchell v. State, 473 S.W.3d 503, 508 (Tex. App.—El Paso 2015) 

(alteration in original) (quoting S. Comm. on Crim. J. Bill Analysis, Tex. S.B. 

746, 84th Leg., R.S. (2015)). Second, the possibility of “federal court 

intervention” to examine the punitive nature of certain conditions of 

confinement “was not insignificant.” Id.

 

1 The original version of the SVPA imposed many additional requirements that could 

trigger a third-degree felony prosecution. Tex. Health & Safety Code Ann. §§ 841.082(a)(1)–

(4), 841.085 (1999). 

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In 2015, “to ensure the continued constitutionality of the Texas civil 

commitment program,” the Texas Legislature overhauled the SVPA. Id. The 

SVPA no longer mandates confinement but simply “requir[es] the person to 

reside where instructed by the office.” Tex. Health & Safety Code Ann.

§ 841.082(a)(1) (West 2017) (emphasis added). A new agency, Texas Civil 

Commitment Office, has replaced OVSOM to oversee supervision and 

treatment of committed persons. Tex. Health & Safety Code Ann. § 841.007 

(West 2015). The new SVPA has also “decriminalized the failure to participate 

in and comply with a civil commitment treatment program.” Vandyke v. State, 

538 S.W.3d 561, 569 (Tex. Ct. Crim. App. 2017); Tex. Health & Safety Code. 

Ann. § 841.085 (West 2015) (limiting criminal prosecution to violations of four 

specific subsections of § 841.082). We have not been asked to weigh in on the 

constitutionality of the new SVPA as Brown does not bring a facial challenge 

to the new statute.2 Instead, our inquiry is limited to Brown’s specific claims 

regarding his confinement at two contractor-run facilities and a county jail 

from 2011 to 2012 under the prior SVPA.

B.

We recounted the following regarding Brown’s civil commitment in the 

previous appeal:

 

2 In 2017, the Texas Court of Criminal Appeals upheld the new SVPA against a 

challenge based on the Texas Constitution, but the court had no occasion to opine on the 

SVPA’s viability under the United States Constitution. Vandyke, 538 S.W.3d at 582–83.

Without opining on the correctness of the ruling, we also note that a district court in 

the Northern District of Texas granted habeas relief to an inmate convicted of violating a 

commitment condition imposed by the court that ordered his civil commitment. Russell v. 

Davis, 297 F. Supp. 3d 639 (N.D. Tex. 2017). The district court declared unconstitutionally 

vague a provision of the 2005 version of the SVPA that allows a court to impose additional 

conditions that it may deem necessary. Id. at 644. Because the latest version of the SVPA 

no longer permits a committing court to impose any additional requirements that it may 

deem necessary, the Russell decision has no bearing on the constitutionality of the current 

SVPA. See Tex. Health & Safety Code Ann. § 841.085 (2015). 

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[In 1998,] Clarence Brown was convicted in Texas state court of 

one count of aggravated assault on a peace officer and three counts 

of sexual assault, and was sentenced to fifteen years in prison. 

Before Brown was released from prison [in October 2011], the state 

initiated civil commitment proceedings against him under [the 

SVPA]. A jury found that he had a behavioral abnormality that 

made him “likely to engage in a predatory act of sexual violence,” 

and the trial court entered a final judgment ordering Brown civilly 

committed. In re Commitment of Brown, No. 09–10–00589–CV, 

2012 WL 4466348, at *1 (Tex. App.—Beaumont Sept. 27, 2012). 

The order was affirmed on appeal. Id.

Brown v. Taylor, 829 F.3d 365, 367 (5th Cir. 2016). 

Brown has alleged the following facts in his first amended complaint.3 

Pursuant to the civil commitment order, OVSOM placed Brown at a facility in 

El Paso operated by Avalon Correctional Services, Inc. According to Brown,

“[t]he El Paso facility [was] surrounded by razor wire” and “equipped with 

surveillance cameras.” Moreover, Brown alleges, the civilly committed 

residents were housed with prisoners and parolees and subject to “daily 

random searches” and property restrictions. Brown filed several complaints 

with Avalon’s home office about confiscation of property, “squalid living 

conditions,” “harassment from staff members and prisoners/parolees,” and 

inadequate grievance procedure. 

On March 8, 2012, Brown was transferred to a different Avalon facility

in Fort Worth, which “operate[d] very similar[ly] to the El Paso facility.” 

During in-processing on the next day, the facility staff informed Brown that he 

needed to sign certain forms acknowledging and agreeing to the facility’s rules. 

Unsure how the rules applied to civilly committed residents, as compared to 

prisoners or parolees, Brown sought clarification before signing the forms. A

 

3 We accept these facts as true and view them in light most favorable to him as we are 

required to do at this stage. See Richardson v. Axion Logistics, LLC, 780 F.3d 304, 304–05 

(5th Cir. 2015). 

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case manager, Clemmy Washington, advised him over the phone to “hold on” 

as “he would be there shortly to go over the rules.” While Brown awaited, 

Facility Director Greg Basham directed a staff member over the phone to 

instruct Brown to sign the forms “right then and there.” Brown continued to 

wait and “mentioned filing a lawsuit against Avalon in El Paso concerning the 

same rules.” 

When Washington arrived, he explained that Basham “had called [the 

Avalon home office] and rejected [Brown] from his facility . . . .” The facility 

staff subsequently informed Brown that he would be arrested for his failure to 

sign the forms. While Brown was packing, Basham approached him and 

“began yelling and screaming that he would not tolerate [Brown] causing 

problems at his facility, like he did in El Paso,” “that he had been contacted by 

people in El Paso that [Brown] would be a problem, and that [Basham] would

not tolerate [Brown] contacting [Avalon’s home office] under [any]

circumstances.” Brown was soon arrested, indicted for violating the terms of 

his commitment, and confined at the Tarrant County Jail as a pre-trial 

detainee. 

After six months in the Tarrant County Jail, on September 13, 2012, 

Brown posted bond. Instead of releasing Brown to a residential facility,

however, Tarrant County Sheriff Dee Anderson transferred him to the Cold 

Springs Jail. Brown alleges—and the state concedes—that he was not 

provided sex offender counseling treatment at the Cold Springs Jail until he 

was acquitted. See ROA.100–07, 504; Oral Argument at 30:46–31:13; 37:25–

39:33, Brown v. Taylor (No. 16-11644). 

When Brown was eventually acquitted of violating the terms of the

commitment order on October 3, 2012, he was not immediately released from 

the Cold Springs Jail. Brown alleges that Washington “conveyed to [him] that 

he would continue to remain in the Cold Spring Jail until [he] learned to quit 

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filing grievances and lawsuits.” During this time, although Brown was

permitted to attend sex offender treatment, he was otherwise treated as an 

inmate. Over a month after acquittal, Brown was finally transferred to a 

different residential facility in Houston not run by Avalon.4 

Brown filed a pro se complaint under 42 U.S.C. § 1983 against various 

defendants in their official and individual capacity. “The district court 

dismissed Brown’s complaint sua sponte, with prejudice and without notice and 

opportunity to respond.” Brown, 829 F.3d at 370. On appeal, we observed that 

the district court’s power to dismiss pro se complaints “is cabined by the 

requirements of basic fairness,” vacated the dismissal, and remanded so that 

Brown could amend his complaint. Id. 

On remand, the district court instructed Brown to “identif[y] every 

defendant he is suing by name” and “indicate[] the capacity (individual or 

official or both) in which he is suing each individual defendant.” Brown’s first 

amended complaint identified the following defendants in their individual 

capacity: Allison Taylor, the former executive director of OVSOM; Brian 

Costello, Avalon’s president; Carlos Morales, El Paso facility manager; 

Basham; Anderson; and Tarrant County Commissioners’ Court.5 

Just one day after receiving Brown’s first amended complaint, the 

district court sua sponte dismissed the claims against the defendants in their 

official capacity as abandoned. The district court also concluded that Brown 

abandoned numerous defendants, in individual and official capacity,

previously named in the original complaint but not named in the first amended 

 

4 Brown has not brought any claims based on the Houston facility’s conditions. 5 The first amended complaint also alleged various claims against three officers of the 

Texas Department of Public Safety and Tarrant County District Attorney. Brown does not 

appeal, and has forfeited, these claims. See Med. Ctr. Pharmacy v. Holder, 634 F.3d 830, 834 

(5th Cir. 2011) (“[A]n issue that could have been but was not raised on appeal is forfeited and 

may not be revisited by the district court on remand.”). 

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complaint. Brown attempted to file the second amended complaint, asserting 

that “[a]lthough [he] made a mistake in the captioning of parties, [his] wording 

within the suit indicate[d] what his intentions were” and that did not abandon 

the claims against those parties in their official capacity. The district court 

denied Brown leave to amend his complaint, noting that it had clearly 

admonished Brown to indicate the defendants’ capacity. In a separate order, 

the district court also sua sponte dismissed the claims against the defendants

in their individual capacity. 

Brown appeals the dismissal of his (1) due process claim against “Avalon 

defendants” and Taylor based on the prison-like conditions of Avalon’s El Paso 

and Forth Worth facilities; (2) due process claim against Anderson, Tarrant 

County, and Taylor for his confinement at the Cold Springs Jail despite posting 

bond and being acquitted; and (3) retaliation claim against Basham and Taylor

for rejecting him from the Fort Worth facility and subjecting him to the 

subsequent confinement. Brown also appeals the denial of leave to file the 

second amended complaint.6 

II.

“We review a dismissal for failure to state a claim de novo and a denial 

of leave to amend a complaint for abuse of discretion.” Innova Hosp. San 

Antonio, L.P. v. Blue Cross & Blue Shield of Ga., Inc., 892 F.3d 719, 726 (5th 

Cir. 2018). To survive a motion to dismiss, a complaint must contain sufficient 

factual matter which, when taken as true, states “a claim to relief that is 

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 

Factual allegations must “be enough to raise a right to relief above the 

 

6 The State of Texas sought to participate in this appeal as an amicus curiae, 

submitted a brief, volunteered to appear for oral argument, and addressed the merits of the 

case. We deem it to have appeared as a party. On remand, the district court shall direct the 

State of Texas to formally appear. 

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speculative level.” Id. at 555. “If a complaint is written pro se, we are to give 

it a liberal construction.” Carlucci v. Chapa, 884 F.3d 534, 538 (5th Cir. 2018).

III.

We first turn to the district court’s sua sponte dismissal of Brown’s due 

process claims. 

A.

Brown contends that he has stated a cognizable claim that the “Avalon 

defendants” and Taylor violated due process by subjecting him to prison-like 

conditions at Avalon’s El Paso and Fort Worth facilities. We disagree. 

“Although freedom from physical restraint ‘has always been at the core 

of the liberty protected by the Due Process Clause from arbitrary governmental 

action,’ that liberty interest is not absolute.” Kansas v. Hendricks, 521 U.S. 

346, 356 (1997) (quoting Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). A state 

may civilly confine those individuals “who are unable to control their behavior 

and who thereby pose a danger to the public health and safety.” Id. at 357. 

This is true for the mentally ill who need the society’s special care and for 

sexually violent predators who require the state’s supervision and treatment. 

Id. at 360. 

While such civilly committed persons are “entitled to more considerate 

treatment and conditions of confinement than criminals whose conditions of 

confinement are designed to punish,” the Constitution nevertheless affords a 

state wide latitude in crafting a civil commitment scheme. Youngberg v. 

Romeo, 457 U.S. 307, 321–22 (1982). Rightly so: the state legislatures not only 

are equipped, but also possess the democratic mandate, to make difficult policy 

choices regarding the supervision and treatment of sexually violent predators. 

See Addington v. Texas, 441 U.S. 418, 426 (1979) (“[T]he state . . . has 

authority under its police power to protect the community from the dangerous 

tendencies of some who are mentally ill.”); see also Hendricks, 521 U.S. at 359 

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(observing that courts have “traditionally left to legislators the task of defining 

terms of a medical nature that have legal significance”); Vandyke, 538 S.W.3d 

at 567 (observing that “the [Texas] Legislature made the difficult policy 

determination” in amending SVPA). Due process requires only that “the 

conditions and duration of confinement . . . bear some reasonable relation to 

the purpose for which persons are committed.” Seling v. Young, 531 U.S. 250, 

265 (2001). 

Brown has not sufficiently alleged how the conditions at Avalon’s 

facilities lacked a reasonable relation to Texas’s twin goals of “long-term 

supervision and treatment of sexually violent predators.” Tex. Health & Safety 

Code Ann. § 841.001; In re Fisher, 164 S.W.3d at 651. Brown misses the mark 

as he contends that these facilities violated due process by being too prisonlike. Hendricks forecloses such a contention. The Supreme Court in Hendricks 

upheld Kansas’s civil commitment scheme even though Kansas confined the 

committed persons at a prison hospital with prisoners and treated prisoners 

and committed persons alike. 521 U.S. at 363; id. at 379 (Breyer, J., 

dissenting). Proximity to prisoners and restrictive conditions alone do not 

state a due process claim. Moreover, Avalon’s secure facilities—despite their 

restrictive rules and ungraceful living conditions—were reasonably related to 

the goals of supervision and treatment. Under the 2005 SVPA, the Texas 

Legislature chose to supervise sexually violent predators by requiring them to 

reside at residential facilities and regularly undergo counseling. The security 

measures and strict rules at Avalon’s facilities, which maintained

accountability of the residents and order at the facilities, furthered those goals.

Accordingly, we hold that Brown has failed to state a due process claim 

based on his confinement in El Paso and Fort Worth.

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B.

Next, Brown contends that he has stated a valid claim that Anderson,

Tarrant County, and Taylor violated due process by confining him at the Cold 

Springs Jail despite posting bond and being acquitted. We hold that he has 

stated a valid claim against Anderson and Tarrant County, but not Taylor, as

to his post-bond confinement. We also hold that he has failed to state a claim 

as to his post-acquittal confinement. 

Brown has stated a cognizable due process claim that his post-bond

confinement at the Cold Springs Jail was not reasonably related to supervision 

and treatment. See Seling, 531 U.S. at 265. Brown alleges—and the state 

concedes—that he received no sex offender treatment while being held after 

posting bond. ROA.504 (“Defendant Tarrant County Commissioners’ is aware 

that Tarrant County Jail facilities are not treatment centers for offense specific 

sex offender treatment, and therefore do not bear some reasonable relation to 

the purpose for which [Brown] was civilly committed.”); see also ROA.100–07 

(OVSOM logs showing Brown attending sex offender treatment at the Cold 

Springs Jail after acquittal); Oral Argument at 30:46–31:13; 37:25–39:33, 

Brown v. Taylor (No. 16-11644). If the state held Brown without providing any 

sex offender treatment, then the confinement could not possibly further the 

goals of supervision and treatment. 

The state contends that Brown’s confinement at the Cold Springs Jail 

was permissible because it was done pursuant to a civil commitment order. 

While the state could not release Brown on his own recognizance, the state 

should have nonetheless released him to a residential facility pursuant to the 

SVPA. And even if the Cold Springs Jail was a residential facility under 

contract with OVSOM, the “conditions and duration” of Brown’s confinement 

at the Cold Springs Jail needed to bear “some reasonable relation to” 

supervision and treatment. Seling, 531 U.S. at 265. Brown has sufficiently 

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alleged that the state confined him without treatment. At this stage, that was

all that Brown was required to do: to plead sufficient allegations to raise his 

right to relief above the speculative level. See Twombly, 550 U.S. at 555. 

The state also contends that Brown’s claims are not cognizable because 

Anderson, Tarrant County, and Taylor did not cause Brown’s confinement at 

the Cold Springs Jail. As to Anderson and Tarrant County, Brown’s 

allegations are sufficient. Brown alleges that Anderson “agreed to confine 

[him] within [Anderson’s] facility.” Tarrant County can be a proper defendant 

because Anderson is its sheriff.7 See Turner v. Upton Cty., Tex., 915 F.2d 133, 

136 (5th Cir. 1990) (“[I]n Texas, the county sheriff is the county’s final 

policymaker in the area of enforcement . . . .”). We agree, however, that Brown

has not stated a claim against Taylor. “Section 1983 does not create 

supervisory or respondeat superior liability.” Oliver v. Scott, 276 F.3d 736, 742 

(5th Cir. 2002). “Rather, a plaintiff must show either [that] the supervisor 

personally was involved in the constitutional violation or that there is a 

‘sufficient causal connection’ between the supervisor’s conduct and the 

constitutional violation.” Evett v. Deep E. Tex. Reg’l Narcotics Trafficking Task 

Force, 330 F.3d 681, 689 (5th Cir. 2003) (quoting Tomkins v. Belt, 828 F.2d 298, 

304 (5th Cir. 1987)). Beside Taylor’s role as the head of OVSOM, Brown has 

not adequately alleged that Taylor personally caused his plight at the Cold 

Springs Jail. Therefore, Brown has failed to state a claim against Taylor. 

As to Brown’s continued confinement after his acquittal, he has not 

stated a cognizable due process claim. After acquittal, the state resumed 

providing him with sex offender treatment and permitted him to leave the Cold 

 

7 In his pro se complaint, Brown named Tarrant County Commissioners’ Court, 

instead of Tarrant County itself. For this appeal, we will construe his complaint liberally 

and treat this claim as a claim against Tarrant County itself. See Wilson v. Dallas Cty., No. 

3:11-CV-879-L., 2014 WL 4261951, at *6 (N.D. Tex. Aug. 29, 2014). In any event, Brown will 

have the opportunity to amend his complaint and name Tarrant County on remand. 

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Springs Jail pursuant to his supervision level. These conditions, therefore, 

bore a reasonable relation to supervision and treatment. 

For these reasons, we hold that Brown has stated a due process claim 

against Anderson and Tarrant County, but not Taylor, for his post-bond 

confinement at the Cold Springs Jail. Brown has not, however, stated a claim 

for his post-acquittal confinement at the Cold Springs Jail. 

IV.

We now turn to the district court’s sua sponte dismissal of Brown’s 

retaliation claim. Brown contends that he has stated a valid retaliation claim 

against Basham and Taylor for rejecting him from the Fort Worth facility and 

subjecting him to subsequent confinement.8 We agree as to Basham but not 

Taylor. 

“To state a valid claim for retaliation under [S]ection 1983, a prisoner 

must allege (1) a specific constitutional right, (2) the defendant’s intent to 

retaliate against the prisoner for his or her exercise of that right, (3) a 

retaliatory adverse act, and (4) causation.” Bibbs v. Early, 541 F.3d 267, 270 

(5th Cir. 2008) (quoting Jones v. Greninger, 188 F.3d 322, 324–25 (5th Cir. 

1999)). “Filing a grievance is a constitutionally protected activity, and a prison 

official may not retaliate against a prisoner for engaging in a protected 

activity.” Huff v. Thaler, 518 F. App’x 311, 312 (5th Cir. 2013); accord Woods 

v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995). To show causation, a plaintiff 

must allege that “but for the retaliatory motive the complained of incident . . . 

would not have occurred.” Woods, 60 F.3d at 1166. A plaintiff must either 

“produce direct evidence of motivation” or “allege a chronology of events from 

which retaliation may plausibly be inferred.” Id.

 

8 Brown explicitly disclaimed that he was asserting a retaliatory arrest claim as his 

arrest was supported by probable cause. 

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Brown has sufficiently alleged not only a chronology of events that 

bespeaks retaliation, but also Avalon employees’ statements and actions—if 

true—that could constitute direct evidence of retaliatory motive. See id.

Brown filed numerous grievances regarding the conditions of confinement with 

the Avalon’s home office. Because he filed those grievances and was known as 

“a problem,” Basham rejected Brown from the facility. Brown alleges that 

Basham yelled at him that “he would not tolerate [Brown] causing problems at 

his facility like he did in El Paso,” and that he would not tolerate [Brown] 

contacting [Avalon’s home office] under [any] circumstances.” Brown’s 

rejection led to his subsequent arrest for violating the terms of his commitment 

order and 7-month confinement in county jails. Even after his acquittal, 

Avalon’s staff told him that he would “remain in the Cold Spring Jail until he 

learned to quit filing grievances and lawsuits.” 

The district court did not engage with these factual allegations at all, 

much less take them as true as it was bound to do at this stage. 

See Richardson, 780 F.3d at 304–05. Instead, the district court dismissed 

Brown’s claims against Basham on the grounds that “threatening language” 

and “choosing not to keep [Brown] at the facility” do not constitute a 

constitutional violation. This misses the point. Although rejection from the 

facility alone would not constitute a cognizable retaliation claim, rejection as a 

measure of retaliation for Brown’s exercise of protected activity is a cognizable 

claim. See Bibbs, 541 F.3d at 271–72 (noting that although a prisoner is not 

“entitled to the comforts of everyday life,” the plaintiff sufficiently alleged that 

his exposure to “below-freezing temperatures” was “a measure of retaliation”); 

Jackson v. Cain, 864 F.2d 1235, 1248 n.3 (5th Cir. 1989) (observing that 

although prison officials could transfer a prisoner’s job assignment “for almost 

any reason or no reason at all,” the reassignment “may not be retaliatory 

against [the prisoner’s] exercise of constitutional rights”). While Basham 

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certainly had the discretion to reject Brown from his facility, Brown has

sufficiently alleged that Basham did so to retaliate against him for filing 

grievances.9 Therefore, Brown has stated a cognizable retaliation claim 

against Basham. 

Brown’s allegations against Taylor, however, are insufficient. Brown 

alleges that Taylor “forced” him to remain at Cold Springs Jail for filing 

grievances “through policies, practice[s], and procedures.” Beside Taylor’s role 

as the head of OVSOM, however, Brown has not alleged Taylor’s personal 

involvement in his confinement or actions that caused his woes. See Evett, 330 

F.3d at 689. Therefore, Brown has failed to state a retaliation claim against 

Taylor but stated a claim against Basham. 

IV.

Brown contends that the district court abused its discretion in denying 

him leave to amend his complaint to include the claims against the defendants 

in their official capacity. We agree. 

“Rule 15(a) requires a trial court to ‘freely give leave when justice so 

requires.’ ” N. Cypress Med. Ctr. Operating Co., Ltd v. Aetna Life Ins. Co., 898 

F.3d 461, 477 (5th Cir. 2018) (emphasis added) (quoting Fed. R. Civ. P. 15(a)). 

“[T]his mandate is to be heeded.” Foman v. Davis, 371 U.S. 178, 182 (1962). A

district court must provide a “ ‘substantial reason’ to deny a party’s request for 

leave to amend,” such as “undue delay, bad faith or dilatory motive on the part 

of the movant, repeated failures to cure deficiencies by amendments previously 

allowed, undue prejudice to the opposing party . . . , and futility of the 

amendment.” N. Cypress Med., 898 F.3d at 477 (quoting Marucci Sports, 

 

9 The state asserts that Brown’s retaliation claim fails because “Brown has no 

protectable interest under the First Amendment to disobey facility rules or refuse to sign a 

rules package.” State’s Brief at 29. Brown has sufficiently alleged that Basham retaliated 

against him for filing grievances, which is a constitutionally protected activity. 

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L.L.C. v. Nat’l Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 2014)). 

A district court’s failure to provide an adequate explanation justifies a reversal. 

Id. at 478. 

The district court has not provided a substantial reason for denying 

Brown leave to amend his complaint. Although the district court had 

admonished Brown to indicate the defendants’ capacity, Brown had not made 

any other mistakes. In other words, there was no “repeated failures to cure 

deficiencies” that could overcome “the presumption in favor of allowing 

pleading amendments.” N. Cypress Med., 898 F.3d at 477–78. 

Moreover, Brown readily admitted his error, attempted to explain his 

intent to sue the defendants in their official capacity from the content of his 

first amended complaint, and provided a proposed amendment. 

Cf. Yumilicious Franchise L.L.C. v. Barrie, 819 F.3d 170, 177 (5th Cir. 2016) 

(holding that the district court did not abuse its discretion when the movant 

“did not include its proposed amendment” or “make an argument as to why 

leave to amend was appropriate”). Brown’s actions neither showed a sign of 

bad faith nor constituted a delay tactic. See N. Cypress Med., 898 F.3d at 477. 

In a footnote, the district court stated that “the majority of [officialcapacity] claims . . . would be barred by the Eleventh Amendment” and that 

“plaintiff has not pleaded facts sufficient to state a claim against Tarrant 

County.” The state contends that the district court properly denied leave to 

amend the complaint as futile because the official-capacity claims would be 

barred. But even under the district court’s stated reasoning, not all claims 

would be barred, and Brown could potentially state a claim against Tarrant 

County. See also N. Cypress Med. Ctr., 898 F.3d at 478 (“For futility, ‘[a]n 

amendment is futile if it would fail to survive a Rule 12(b)(6) motion.’ ” 

(alteration in original) (quoting Marucci, 751 F.3d at 378)). Brown’s 

amendment will not be futile. 

 Case: 16-11644 Document: 00514757359 Page: 16 Date Filed: 12/12/2018
No. 16-11644

17

By failing to provide a substantial reason, the district court erred in 

denying Brown leave to amend his complaint under these circumstances. 

V.

For the foregoing reasons, we AFFIRM in part the district court’s 

dismissal of Brown’s due process and retaliation claims against Taylor and due 

process claims against the Avalon defendants. We VACATE the dismissal of 

Brown’s due process claim against Anderson and Tarrant County and 

retaliation claim against Basham, as well as the denial of leave to amend the 

complaint. We REMAND for further proceedings consistent with this opinion. 

 Case: 16-11644 Document: 00514757359 Page: 17 Date Filed: 12/12/2018