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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 16-11644             United States Court of Appeals
                                                                   Fifth Circuit

                                                                 FILED
                                                          December 12, 2018

CLARENCE D. BROWN,                                          Lyle W. Cayce
                                                                 Clerk
             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
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                                No. 16-11644
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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                                     No. 16-11644
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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                                      No. 16-11644
       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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                                      No. 16-11644
       [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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                                 No. 16-11644
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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                                       No. 16-11644
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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                                      No. 16-11644
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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                                 No. 16-11644
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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                                  No. 16-11644
(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 prison-
like. 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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                                  No. 16-11644
                                        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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                                      No. 16-11644
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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                                     No. 16-11644
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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                                  No. 16-11644
      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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                                      No. 16-11644
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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                                  No. 16-11644
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 [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.
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                                No. 16-11644
      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.




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