     Case: 14-50349      Document: 00512968124         Page: 1    Date Filed: 03/13/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
                                    No. 14-50349                              March 13, 2015
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
AARON HOLLIER, Individually and as Next Friend of M.H., a minor, and
L.H., a minor; VALORIE HOLLIER, Individually and as Next Friend of
M.H., a minor, and L.H., a minor,

              Plaintiffs - Appellants

v.

RANDY WATSON, in his official capacity; CYNTHIA LEON, in her official
capacity; CARIN BARTH, in her official capacity; STEVEN MCCRAW, in his
official capacity; STATE OF TEXAS,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas,
                             U.S.D.C. No. 1:13-cv-821


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
       Plaintiffs-Appellants A. Hollier, V. Hollier, on behalf of themselves and
their minor children (collectively, “the Holliers”), appeal: (1) the district court’s



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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grant of the motion to dismiss filed by Defendants-Appellees, Randy Watson,
Cynthia Leon, Carin Barth, all in their official capacities (collectively,
“Defendants”), (2) the court’s denial of their motion for reconsideration of that
same order, (3) the denial of their motion for leave to amend their complaint,
and (4) the striking of their amended complaint. We affirm.
                      I.    FACTS & PROCEEDINGS
      Aaron Hollier filed a civil rights complaint in district court, alleging that
the Texas Sex Offender registration requirements, as applied to him and his
family, violated the Due Process and Equal Protection Clauses, the Double
Jeopardy Clause, the Ex Post Facto Clause, and constituted a failure-to-protect
claim. The Defendants filed a motion to dismiss, contending that the Holliers
failed to state a claim. Under Western District of Texas Local Rule CV-7(e) the
Holliers’ response was due within fourteen days. The Holliers did not file any
responsive pleading within fourteen days. Because Local Rule CV-7(e) also
provides that the court may grant a motion as unopposed if review of the
pleading reveals that it fails to state a claim, the court reviewed the complaint
and granted the Defendants’ motion to dismiss – eighteen days after it was
filed. Three days later – exactly twenty-one days after the Defendants filed
their motion to dismiss and within the time limit prescribed by Federal Rule
15(a)(1) to amend a pleading – the Holliers filed motions seeking leave to file
an amended complaint and requested reconsideration of the order dismissing
their original complaint. The court denied both motions. In denying the
motion for leave to amend, the district court noted that the amended complaint
advanced the same causes of action and named the same individual defendants
as had the dismissed complaint.
      The Holliers timely appealed the district court’s order granting the
Defendants’ motion to dismiss, its order denying their motion for leave to
amend and for reconsideration, and the striking of the amended complaint. On
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                                    No. 14-50349
appeal, the Holliers assert: (1) The district court prematurely dismissed their
complaint under Federal Rule 15(a)(1) and therefore erred in denying them
leave to amend their complaint and their motion for reconsideration, and (2)
their original and amended complaint states a claim.
                                 II.    ANALYSIS
A.    Denial of motion to dismiss
      We review a district court’s grant of a motion to dismiss de novo,
accepting all well-pleaded facts as true and viewing them in the light most
favorable to the plaintiff. 1 “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” 2 A district court may not dismiss a complaint for
failure to state a claim “unless it appears beyond doubt that the plaintiff can
prove no set of facts that would entitle him to relief.” We may affirm the
district court’s dismissal on any grounds supported by the record. 3
      Before addressing whether the district court erred in granting the
Defendants’ motion to dismiss under the substantive law, we consider whether
the court committed reversible error by granting their motion before passage
of the 21 days in which the Holliers were entitled to amend their complaint “as
a matter of course” under Federal Rule 15(a)(1). The court applied Local Rule
CV-7(e), which provides that a party must file its response to a dispositive
motion within 14 days; and, if no response is filed, the district court may grant
the motion as unopposed.
      On its face, Local Rule CV-7(e) is inconsistent with Rule 15(a)(1), which
permits a party 21 days after service of a motion under Rule 12(b), (e), or (f) in



      1  Whitley v. Hanna, 726 F.3d 631, 637-638 (5th Cir. 2013).
      2  Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation omitted).
       3 Sobranes Recovery Pool I, LLC v. Tood & Hughes Const. Corp., 509 F.3d 216, 221

(5th Cir. 2007) (internal quotation marks omitted).
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which to amend a complaint. Federal Rule of Civil Procedure 83(a) and (b)
provides that a district court may regulate practice in any manner not
inconsistent with federal law, the Federal Rules of Civil Procedure, or the local
rules of the district; 4 and that any local rule imposing a requirement of form
must not be enforced in a way that “causes a party to lose any rights because
of a nonwillful failure to comply.” 5
         We have reversed district court judgments resulting from the application
of local rules which are inconsistent with the federal rules.                         In Clark v.
Richards, an unpublished opinion, we held that Federal Rule 38(b), which
provides that a party may demand a jury trial by way of a written demand in
a pleading, preempted a local rule requiring that a party make its jury demand
on a paper separate from its complaint. 6 In Hicks v. Miller Brewing Company,
also unpublished, we reversed the district court’s striking and unfiling of a
complaint that did not include a certificate of interested persons as required
by the local rules. 7 We reasoned that abridging the plaintiff’s substantive right
to file a lawsuit for failure to comply with a local rule of form ran afoul of Rule
83(b).
         Both cases are distinguishable from the matter before us because the
Holliers did not “lose [their] rights” as a result of the court’s premature grant
of Watson’s motion to dismiss. 8 Although it erred in granting Watson’s motion


         4FED.R.CIV.P. 83(a)-(b). See Kinsley v. Lakeview Reg’l Med. Ctr. LLC, 570 F.3d 586,
589-90 (5th Cir. 2009) (rejecting the application of a local rule when it would controvert the
federal rule governing the filing deadline for a notice of appeal.).
        5 FED.R.CIV.P. 83(a)(2).
        6 No. 93-5119, 1994 WL 286159, at *5 (5th Cir. June 14, 1994) (“Even assuming that

local rule 4(c) mandates that jury demand be made on a separate paper and not endorsed on
the compliant, [the plaintiff’s] compliance with Federal Rule of Civil Procedure 38(b) was
sufficient to make an effective jury demand.”).
        7 No. 01-11422, 2002 WL 663703, at *1 (5th Cir. March 25, 2002).
        8 Cf. id. (reversing the district court’s application of a local rule when the plaintiff “lost

his right to file a lawsuit . . . with the expiration of the statute of limitations period”)
(emphasis supplied).
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to dismiss before the time allowed for amendment by Federal Rule 15(a)(1)
elapsed, the district court had reviewed the amended complaint in connection
with the Holliers’ motion for leave to amend and reconsideration. In so doing,
the court determined that the amended complaint stated the same causes of
action and added back the same individual defendants as the complaint
previously dismissed by the court. 9           Inasmuch as the court reviewed the
amended complaint prior to dismissing the case, we conclude that the Holliers
did not lose any rights as a result of the court’s application of Local Rule CV-
7(e) – wholly separate and apart from the right of the district court to review
the complaint under the timeline prescribed by Rule 15(a)(1). 10 Although we
do not condone the application of Local Rule CV-7(e) under these
circumstances, its application in this case did not constitute reversible error.
       Putting aside the timing of its order dismissing the complaint, we further
conclude that the district court correctly ruled that the Holliers’ complaints –
both first-filed and as amended – failed to state a claim as a matter of law. The
Holliers’ amended complaint asserted that the enactment, application, and
enforcement of the Texas lifetime sex offender registration by the Defendants
in their official capacities (1) deprived them of their constitutional rights to
procedural due process; 11 (2) deprives them of their right to equal protection
under the law; (3) violated the Double Jeopardy Clause; (4) violated the Ex Post
Facto Clause; and, (5) constitutes a failure-to-protect claim. Both the United


       9  Hollier concedes that the amended complaint did not add any new causes of action
or defendants, claiming only that the amended complaint added facts relevant to the equal
protection claim, facts on the low recidivism rate for sex offenders, and facts about crimes
against registered sex offenders and their families.
        10 See Hamman v. Sw. Gas Pipeline, Inc., 721 F.2d 140, 142 (5th Cir. 1983) (concluding

that a local rule permitting the district court to rule on a motion for summary judgment any
time 20 days after the date of filing did not conflict with then-Federal Rule 56(c), which we
interpreted to require notice to the adverse party and a hearing).
        11 The complaint states that the registry deprives them of their fundamental right to

live in a place of their choice, as well as their fundamental right to parental consortium.
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States Supreme Court, and this court, have held that sex offender registration
statutes do not violate a citizen’s right to due process. 12 The same goes for the
Holliers’ ex post facto claim, 13 their equal protection claim, 14 their Double
Jeopardy claim, 15 and their failure-to-protect claim. 16 We therefore conclude
that the district court did not err reversibly in granting the Defendants’ motion
to dismiss the complaint.
B.     Denial of motion for leave to amend and reconsideration
       We begin with the court’s denial of the Holliers’ motion for leave to file
an amended complaint, which we generally review for abuse of discretion. 17
When a district court’s denial for leave to amend is based on futility, however,
we apply a de novo standard of review. 18 Although it did not explicitly state it
was denying the Holliers’ motion for leave to amend on the grounds of futility,
the district court reviewed their amended complaint and determined it was
essentially the same as the original complaint. We may therefore infer that
the court denied the Holliers leave to amend on the ground that amendment
would be futile, and we review its order de novo.
       For substantially the same reasons that we affirm its grant of the
Defendants’ motion to dismiss, we conclude that the district court did not err
in denying the Holliers leave to amend. Again, the court reviewed the amended



       12 See Meza v. Livingston, 607 F.3d 392, 401 (5th Cir. 2010) (citing Conn. Dep’t of Pub.
Safety v. Doe, 538 U.S. 1, 7-8 (2003); Jennings v. Owens, 602 F.3d 652 (5th Cir. 2010))
(procedural due process). See King v. McCraw, 559 F. App’x 278, 283 (5th Cir. 2014)
(substantive due process); Coleman v. Dretke, 395 F.3d 216, 224-25 (5th Cir. 2004) (same).
       13 See Hayes v. Tex., 370 F. App’x 508, 509 (5th Cir. 2010),
       14 See King v. McCraw, No. 4:10-CV-321, 2012 WL 3929826, at *7 (S.D. Tx. Sept. 7,

2012)
       15 See Hayes, 370 F. App’x at 509 (citing United States v. Brown, 571 F.3d 492, 497

(5th Cir. 2009)).
       16 Hollier and his family lack standing to assert a failure-to-protect claim, as the

complaint cites the possibility of injury and is therefore speculative.
       17 City of Clinton, Ark. v. Pilgrim’s Pride Corp., 632 F.3d 148, 152 (5th Cir. 2010).
       18 Wilson v. Bruks-Klockner, Inc., 602 F.3d 363, 368 (5th Cir. 2010).

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                                       No. 14-50349
complaint and found it contained the same causes of action as the dismissed
complaint, making denial of leave to amend prudent. The court should have
permitted the Holliers leave to amend their complaint under the timeline
prescribed in Federal Rule 15(a)(1), but we discern no reversible error in light
of the court’s review of the Holliers’ amended complaint before it denied their
motion for leave to amend. To remand this case to district court for further
proceedings would simply “prolong the inevitable,” and we hold the court’s
denial does not constitute reversible error under these circumstances. 19
       The same holds for the district court’s denial of the Holliers’ motion for
reconsideration of the order dismissing the complaint, which is governed by
the same considerations as its motion for leave to amend. 20 They sought
reconsideration of that order only in the event that the district court should
deny their motion for leave to amend their complaint. They did not present
any grounds for reconsideration other than the submission of their amended
complaint. We therefore conclude that the district court did not abuse its
discretion in denying the Holliers’ motion for reconsideration. Finally, for the
same reasons that we hold the district court did not err in denying the Holliers
leave to amend and their motion for reconsideration, the court did not err in




       19  In McKinney v. Irving Independent School District, we affirmed the district court’s
denial of a motion for leave to amend on the ground that “remanding the case to allow another
pleading would do nothing but prolong the inevitable,” notwithstanding that the plaintiff was
entitled to amend its complaint at the time of dismissal. 309 F.3d 308, 315 (5th Cir. 2002)
(citing Spiller v. City of Tex. City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997 (quoting
Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir. 1986))); see also Stripling v. Jordan Prod.
Co., LLC, 234 F.3d 863, 872-73 (5th Cir. 2000) (“It is within the district court’s discretion to
deny a motion to amend if it is futile.” (citing Martin’s Herend Imports, Inc., 195 F.3d 765,
771 (5th Cir. 1999)).
        20 When judgment has been entered on the pleadings, as it was in this case, the

standards governing our review of a motion for reconsideration are the same as those
governing a motion under Rule 15(a). See Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594,
597 n.1 (5th Cir. 1981).
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striking their amended complaint.   The judgment of the district court is
therefore AFFIRMED.




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