     Case: 17-11172   Document: 00515072978     Page: 1   Date Filed: 08/12/2019




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

                                                                       FILED
                                 No. 17-11172                    August 12, 2019
                                                                  Lyle W. Cayce
STEPHEN PATRICK BLACK,                                                 Clerk


             Plaintiff - Appellant

v.

DARRELL B. TURNER, Doctor of Philosophy, in his official and individual
capacity as the state’s psychological expert witness; JANICE ULMER,
Members of the Texas Department of Criminal Justice Civil Commitment
Multidisciplinary Team, in their official and individual capacities as
employees of Texas Department of Criminal Justice; JOSEPH BONJORNO,
Members of the Texas Department of Criminal Justice Civil Commitment
Multidisciplinary Team, in their official and individual capacities as
employees of Texas Department of Criminal Justice; MELINDA FLETCHER,
In their official and individual capacities as attorneys for the special
prosecution unit; SAMANTHA TORRES, In their official and individual
capacities as attorneys for the special prosecution unit; MARSHA MCLANE,
Executive Director, in their official and individual capacities as employees of
the Texas Civil Commitment Office; MICHAEL SEARCY, In their official and
individual capacities as employees of the Texas Civil Commitment Office;
TIFFANY MAYBANK, In their official and individual capacities as
employees of the Texas Civil Commitment Office; ERIC DICKEY, In their
official and individual capacities as employees of the Texas Civil
Commitment Office; AMY GOLDSTEIN, In their official and individual
capacities as employees of Correct Care Recovery Solutions; CYNTHIA
BURNS, In their official and individual capacities as employees of Correct
Care Recovery Solutions,

             Defendants – Appellees
     Case: 17-11172      Document: 00515072978         Page: 2    Date Filed: 08/12/2019



                                      No. 17-11172



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:17-CV-111


Before DAVIS, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Stephen Black appeals from the district court’s denial of his motion for
leave to amend his complaint, after the district court issued a final judgment.
We find no abuse of discretion in the denial, and accordingly, we affirm.
                                             I.
       Black is currently in civil confinement at the Texas Civil Commitment
Center in Littlefield, Texas, because he was adjudicated a sexually violent
predator.    After Black’s adjudication, he sued a number of individuals in
federal district court under 42 U.S.C. § 1983. Specifically, he asserted that
Daniel Turner’s testimony and expert report—upon which state officials relied
in Black’s civil commitment proceedings—contained two errors of fact which
are affecting his treatment while civilly confined. The expert report states that
Black was convicted of five counts of indecency with a child and that Black was
convicted of a DWI in 2003. Black alleges that he was only convicted of one
count of indecency and that he was convicted of a DWI in 1993.
       The district court dismissed Black’s complaint for three reasons. First,
the district court concluded that Heck v. Humphrey barred the complaint,
because a finding in favor for Black would have necessarily undermined the



       * 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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                                 No. 17-11172


validity of the state court judgment. See 512 U.S. 477, 486–87 (1994). Second,
the district court concluded that the claims were barred by the Rooker-
Feldman doctrine, reasoning that the claims are inexorably intertwined with
a state court’s judgment, and the district court could not sit in review of that
state court’s judgment. See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923);
D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). Finally, the district
court concluded that Black’s remaining claims were barred, because Texas
granted statutory immunity to all of the named defendants in Black’s
complaint. See TEX. HEALTH & SAFETY CODE § 841.147.
      After the district court issued its final order, Black moved to amend the
complaint and requested relief from the final judgment, pursuant to Rules
52(b), 59(a), 59(b), 59(e), and 60(b)(6) of the Federal Rules of Civil Procedure.
In his proposed amendment, Black removed all defendants from the original
complaint except for Turner and stated that the claims against Turner should
not be construed as a collateral attack on the state court judgment. The
proposed amendment maintained Black’s allegation that Turner negligently
included facts in his expert report and testified to those inaccurate facts.
      The district court denied Black’s motion to amend, concluding that Black
had failed to demonstrate an entitlement to relief under FED. R. CIV. P. 52(b),
59, or 60, and that the court would not grant leave to amend for the same
reasons stated in its dismissal. Black appeals from the district court’s denial
of leave to amend the complaint.
                                       II.
      When the district court denies leave to amend the complaint after the
court has issued a final judgment, the Rule 59(e) motion to alter or amend a
judgment is governed by Rule 15(a). See Rosenzweig v. Azurix Corp., 332 F.3d
854, 864 (5th Cir. 2003) (citing Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594,
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597 n.1 (5th Cir. 1981)). We review a Rule 15(a) denial, nominally for an “abuse
of discretion,” although the district court’s discretion is “limited.” Id. at 863–
64. Under Rule 15(a), a district court must freely give leave to amend, subject
to a few considerations—undue delay, bad faith or dilatory motive by the
movant, repeated failures to cure deficiencies by amendment, undue prejudice
by allowing the amendment, and whether granting the amendment would be
futile. See U.S. ex rel Willard v. Humana Health Plan of Tex. Inc., 336 F.3d
375, 386 (5th Cir. 2003) (quoting Foman v. Davis, 371 U.S. 178, 230 (1962)).
We conclude that Black’s amended complaint would have been futile.
                                       A.
      The district court concluded that Black’s § 1983 claims were barred by
Heck v. Humphrey.      In Heck, the Supreme Court held that “[a] claim for
damages bearing that relationship to a conviction or sentence that has not been
so invalidated is not cognizable under § 1983,” unless the plaintiff could “prove
that the conviction or sentence has been reversed on direct appeal, expunged
by executive order, declared invalid by a state tribunal authorized to make
such determination, or called into question by a federal court’s issuance of a
writ of habeas corpus.” 512 U.S. at 486–87.
      Although “whether Heck extends to civil commitments is still a res nova
question in this circuit,” we need not answer the question here. Smith v. Hood,
900 F.3d 180, 185 (5th Cir. 2018). Regardless of whether Heck applies to civil
commitment, the plaintiff must still “assert [a] coherent legal theory, either in
his briefs or in his complaint below, explaining how these actions violated his
federal rights.” Id. at 186. Black has not asserted a coherent legal theory.
      Here, Black has alleged—in the complaint and the proposed
amendment—that Turner negligently included incorrect facts in his expert
report. Even if we take as true that Turner’s report contained inaccuracies,
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                                  No. 17-11172


Black received due process.      Black had the opportunity to contest those
inaccuracies at the civil confinement trial, review the report, and offer evidence
to rebut those facts. See TEX. HEALTH & SAFETY CODE § 841.061(d). Black does
not allege any deficiency in the trial or a lack of opportunity to present his own
evidence.
      Black has also failed to show that a failure to change an allegedly
inaccurate expert report constitutes a violation of a person’s Eighth and
Fourteenth Amendment rights. We decline Black’s invitation to find that an
individual has a right to correct facts in an expert report, relevant to that
individual’s civil confinement, after that individual had the opportunity to
contest that expert report at trial.
      Black’s amendment is futile for yet another reason—the claim is based
solely upon Turner’s alleged negligent actions. Black repeatedly states that
Turner negligently included incorrect facts in his expert report in both his
original complaint and in his proposed amendment. But as we have previously
held, “[t]he due process clause is not implicated by a negligent act.” Salas v.
Carpenter, 980 F.2d 299, 306 (5th Cir. 1992) (citing Daniels v. Williams, 474
U.S. 327, 328 (1986)).     Accordingly, Black’s amendment fails to assert a
cognizable claim.
      Therefore, because we find that Black alleged no violation of a federal
right protected by the Eighth or Fourteenth Amendments, and because Black’s
proposed amendment would have only repeated a claim based on negligence,
we find that the amendment is futile. Accordingly, the district court did not
abuse its discretion in denying leave to amend.
                                       B.
      To the extent that Black asserts and seeks to amend his complaint to
reflect any remaining state-based claims, we find that Turner is immune from
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                                 No. 17-11172


suit under state law. See TEX. HEALTH & SAFETY CODE § 841.147 (providing
that a person performing a service under Chapter 841 is “immune from liability
for good faith conduct”).    As an expert witness who evaluated Black for
behavioral abnormalities, Turner performed a service under Chapter 841 of
the Texas Health and Safety Code. Id. And Black has not alleged any bad
faith on the part of Turner—only negligence. Therefore, we find that the
amendment would be futile based on the reiteration of these state-based
claims.
                                       III.
      For the foregoing reasons, we affirm the district court’s denial of leave to
amend the final judgment and amend the complaint.




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