CLARENCE D. BROWN 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
No. 16-11644
United States Court of Appeals for the Fifth Circuit
December 12, 2018
Lyle W. Cayce, Clerk
PER CURIAM:
Clarence Brown filed a pro se complaint under
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.”
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
B.
We recounted the following regarding Brown‘s civil commitment in the previous appeal:
[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
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
Brown filed a pro se complaint under
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
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
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
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.”
Accordingly, we hold that Brown has failed to state a due process claim based on his confinement in El Paso and Fort Worth.
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
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
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.
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
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
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 [official-capacity] 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.
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.