Brief in Support of Renewed Motion; diagnosis terms blacked out on this copy¶

Bass v. TTUHSC, No. 5:25-cv-00244-H-BV (N.D. Tex.) · 2026-07-28 · PDF

Text extracted from the PDF; scanned pages were read by OCR. The PDF is the authoritative copy.

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
KEVIN N. BASS,
Plaintiff,

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v.
TEXAS TECH UNIVERSITY HEALTH
SCIENCES CENTER, et al.,
Defendants.

Civil Action No. 5:25-cv-00244-H-BV

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PLAINTIFF'S BRIEF IN SUPPORT OF RENEWED MOTION FOR LEAVE TO FILE
SECOND AMENDED COMPLAINT

Use of Generative Artificial Intelligence (N.D. Tex. LR 7.2(f)). Plaintiff used generative
artificial intelligence as a research and drafting aid in preparing this brief. Plaintiff has reviewed
the content and accepts full responsibility for it.
Pursuant to N.D. Tex. Local Rule 7.1(d), Plaintiff Kevin N. Bass submits this brief in support of
his renewed motion for leave to file the proposed Second Amended Complaint attached to the
motion as Exhibit 1 — the same document attached as Exhibit A to Plaintiff's
contemporaneously filed Objections to the Findings, Conclusions, and Recommendation of July
14, 2026 (Dkt. No. 54) ("FCR"). This motion is filed subject to, and without waiver of, those
Objections.
I. BACKGROUND: THE TWO ORDERS
1. The docket records the following sequence:
(a) Dkt. Nos. 26, 32-1 (proposed amended complaint): Plaintiff first moved for leave to amend
on January 20, 2026 — one day *before* Defendants filed their motion to dismiss, Dkt. No. 27
(Jan. 21, 2026). On February 15, 2026, twenty-five days after that motion and *the same day* he

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filed his response to it, Dkt. No. 33, Plaintiff amended his motion for leave to attach a pleading
of 215 paragraphs addressing the deficiencies Defendants had identified — pleading, among
other facts, the verbatim post text, the specific accommodations requested, the limitations
communicated to TTUHSC, and the institution's months of documented internal recognition.
Dkt. No. 32-1 ¶¶ 38-39, 49, 86.
(b) Dkt. No. 42 (March 27, 2026): this Court denied leave to file that pleading solely under Rule
8, faulting precisely its factual detail — "[i]t quotes extensively from documents . . . and includes
minute details about incidents forming the bases of his claims" — and instructing that "Bass
need not present evidence" at the pleading stage. Dkt. No. 42 at 5-6. The order did not reach
Defendants' futility arguments. Id. at 5.
(c) Dkt. Nos. 43, 43-1 (March 31, 2026): four days later, Plaintiff moved for leave to file a
shortened complaint drafted "to comply with Rule 8," stating — without contradiction from
Defendants or the Court at the time — that "[t]he sole basis for this Court's prior denial was Rule
8 noncompliance — not substantive futility." Dkt. No. 43 at 2-3.
(d) Dkt. No. 54 (July 14, 2026): the FCR recommends denying leave because the shortened
complaint lacks specific factual detail — and concludes Plaintiff "has pleaded his best case,"
FCR at 45, and "has not shown that he can plead sufficient facts to overcome the deficiencies,"
FCR at 55.
2. The two orders, taken together, describe a closed loop: the detailed pleading was
denied for its detail, and the compliant pleading is now found futile for lacking detail. If adopted,
the result would be that neither pleading Plaintiff actually tendered — detailed or concise — was
permissible, and the case would end without any court having passed on a pleading that is both
concise and complete.

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II. LEGAL STANDARD
3. Leave to amend is to be "freely give[n] . . . when justice so requires," Fed. R. Civ. P.
15(a)(2), and denied only for "a substantial reason." Dkt. No. 42 at 3 (quoting Clark v. Dep't of
Pub. Safety & Corr., 141 F.4th 653, 661 (5th Cir. 2025)). An amendment is futile only "if it
would fail to survive a Rule 12(b)(6) motion," under which all well-pleaded facts are accepted as
true and viewed in the light most favorable to the plaintiff. Marucci Sports, L.L.C. v. NCAA,
751 F.3d 368, 378 (5th Cir. 2014). The Fifth Circuit's remedy for a complaint that violates Rule 8
by prolixity is an opportunity to replead in conforming form — not the end of the case. Gordon
v. Green, 602 F.2d 743, 746-47 (5th Cir. 1979) (cited at Dkt. No. 42 at 4). And a pro se plaintiff
should ordinarily be given an opportunity to amend once deficiencies have been identified by the
court, unless the defects are incurable. Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009);
Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002).
III. ARGUMENT
A. The "ample opportunity" premise is refuted by the docket.
4. The FCR concludes: "Bass has had ample opportunity to plead his best case. He
amended his complaint once. And despite being put on notice of deficiencies in his first amended
complaint via Defendants' motion to dismiss, Bass's proposed second amended complaint does
not cure those deficiencies." FCR at 55. Both supporting propositions fail. As to the first: the one
amendment was filed as of right under Rule 15(a)(1), before service and before any deficiency
had been identified by any party or by the Court. Dkt. No. 42 at 1-2. An amendment taken as of
right is not an opportunity to cure — it is the entitlement the rule confers on every plaintiff. The
opportunity Great Plains contemplates is one afforded *after* deficiencies are identified, 313
F.3d at 329, and Plaintiff has never received one: the first amended complaint predated any
identified deficiency, and the Dkt. No. 42 denial addressed the pleading's form, not the

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sufficiency of any claim. As to the second: Plaintiff moved for leave to amend on January 20,
2026 — before the motion to dismiss existed. Dkt. No. 26. Once it was filed, he responded to the
notice it gave: on February 15, 2026, the same day he answered the motion, he amended his
motion for leave to attach the 215-paragraph pleading supplying the facts the FCR now identifies
as missing. Dkt. Nos. 32, 32-1, 33. This Court denied leave on March 27, 2026 — not because
the pleading failed to cure, but because it contained "minute details about incidents forming the
bases of his claims." Dkt. No. 42 at 5-6. Plaintiff filed a conforming pleading four days later.
Dkt. Nos. 43, 43-1. The premise is therefore inverted: notice was given, the cure was tendered
within the month, and the cure was denied for being one. The only pleading that "does not cure
those deficiencies" is the pleading Plaintiff drafted to comply with the order rejecting the
pleading that did. The FCR itself concedes the trajectory: the conforming pleading "recites the
facts in chronological order and contains detail that his operative pleading omitted, making it
easier to understand." FCR at 46. A pleading history the FCR describes as improving is not one
that has exhausted its best case.
B. The same recommendation closes the evidentiary record as well as the pleading.
5. The FCR declined to consider any material either party submitted, FCR at 8-10,
including the General Counsel's statement that the removal was "prompted by the Social Media
post," Ex. A ¶ 32, which it excluded solely because it lay outside the pleadings, FCR at 44 n.6 —
and then found the causation allegations conclusory, FCR at 44-45. Exclusion was within the
Court's discretion. But its consequence, combined with a recommendation of dismissal with
prejudice and denial of further amendment, is that the documented facts can be neither pleaded
nor proved: not pleaded, because the pleading that contained them was denied under Rule 8 and
the one that omitted them is now called futile; not proved, because the record was closed and no
further pleading will be permitted. Rule 15(a)(2) does not contemplate that outcome.
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C. Every fact the FCR identified as missing exists in the record at Dkt. No. 32-1.
6. The FCR's conclusion that Plaintiff "has not shown that he can plead sufficient facts,"
FCR at 55, is refuted by the docket. The table below maps each deficiency the FCR identified to
the paragraph of Dkt. No. 32-1 — filed three and a half months before the FCR — where the fact
is pleaded, and to the paragraph of Exhibit 1 where it now appears in Rule 8-conforming form:
FCR deficiency (page)
Post's "specific language" not
included; court "cannot
evaluate it" (43, 54)
"[D]oes not specify what
accommodations he allegedly
requested" (47)
No facts on the timing bind /
TTUHSC's control of the
schedule (17, 49)
No facts notifying TTUHSC
"of his disability's
limitations" (16-17)
No facts that disabilities
"substantially limit . . . major
life activities" (50)
No facts showing intentional
discrimination (19-21, 50)
Content of "other posts" and
grievances unpleaded (43, 54)
Causation allegations
"conclusory"; retaliatory
animus not the but-for cause
(43-45)
No facts connecting the
accommodation request to
any adverse action; "gating"
allegation "vague" (27-28)

Dkt. No. 32-1
¶ 86 (verbatim text)

Exhibit 1
¶¶ 1, 31

¶¶ 38, 49

¶ 36

¶ 46 (OP 77.14 process
requires up to two weeks;
TTUHSC controlled the date
and chose not to postpone)
¶ 38

¶ 37

¶ 38 (functional limitations;
the statutory "major life
activities" phrasing is
supplied by Exhibit 1 ¶¶ 23,
67)
¶¶ 48-49 (redaction; midhearing break; selective
grant)
¶¶ 92-93, 133

¶¶ 23, 67

¶ 133 (Institutional Speech
Monitoring and Dossier
Construction, 2020-2023)

¶¶ 26-29, 91

¶¶ 23, 36, 69

¶ 72
¶¶ 22, 56, 89

¶¶ 44, 200-201 (eight-item
¶¶ 69, 96
causation chain: the
December 8 notice to the
Board Chair and SDS;
exclusion of disability
evidence and denial of the
expert witness the same
morning Dr. Erwin was added

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Time-limit and bias
allegations "conclusory" (35,
37)
"[D]oes not explain when or
how TTUHSC became
aware" of the
diagnosis (47)
No allegation that the coach's
conduct "dissuaded him from
filing complaints" (51)
"[D]oes not specify who
made that post or on what
platform" (5)

No ongoing ADA violation
alleged; injunctive relief
"relates to past wrongs" (2425, 50)

as a witness; rejection of the
request as "retroactive
leniency")
¶ 51 (80 minutes vs. 30minute limit)
¶ 42 (the Board's own
determination letter refers to
a "pre-existing
diagnosis")
¶ 39 (at 14-15) (coaching
ended in writing; warning at
the hearing that suit "makes it
much more difficult for you
for many reasons")
¶ 123 (an external individual,
on Discord, within five days
of the non-public
determination, in language
mirroring internal TTUHSC
terminology)
¶¶ 8-9, 153-56; Prayer ¶ A
(declaratory relief limited "to
the extent they continue or
are likely to recur")

¶ 44
¶ 25

¶ 30

—

¶¶ 6, 63, 86; Prayer (a)

7. Whatever else may be said of these facts, "Plaintiff cannot plead them" is not among
the available conclusions. They were pleaded. The Court denied leave because of that detail. Dkt.
No. 42 at 5-6. In addition, public records obtained since the proposed amendment was filed —
the Attorney General's production of the hearing officer's outside-counsel contract records
(Public Information Request Nos. R031345 and R031347, final release May 22, 2026) — supply
further concrete facts bearing on the due-process and bias allegations, confirming that "Bass has
pleaded his best case" is not an available conclusion either. See Brief in Support of Objections,
Objection 4.
D. Exhibit 1 cures within Rule 8.

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8. Exhibit 1 is a proposed Second Amended Complaint of twenty-five pages — the Dkt.
No. 43-1 pleading with the specific facts identified in the FCR restored in summary form,
without the document quotations and exhibit volume that Dkt. No. 42 found objectionable. It
demonstrates that the two orders can be satisfied simultaneously. Exhibit 1 responds to
deficiencies articulated with specificity for the first time in the FCR; Plaintiff could not have
tailored a pleading to those articulations any earlier. Exhibit 1 also eliminates the retrospective
declaratory request the FCR identifies, FCR at 21, 50: its prayer seeks declaratory relief only as
to ongoing conduct — the continuing publication of stigmatizing exclusion characterizations and
the continuing refusal of a name-clearing hearing. Ex. 1, Prayer (a). That limitation is not new; it
restores the express framing of the Dkt. No. 32-1 prayer, which sought a declaration only "to the
extent [the challenged practices] continue or are likely to recur," Dkt. No. 32-1, Prayer ¶ A —
language lost in the compression to the conforming pleading whose absence the FCR now counts
against amendment. Exhibit 1 likewise abandons the injunctive requests the FCR found
retrospective or impermissibly general, FCR at 22-25 — the expungement and correctedtranscript items, the contingent new-hearing request, and the comply-with-law formulations —
seeking only the name-clearing process, limits on new communications, and a corrective
clarification to identified recipients. Ex. 1, Prayer (d). The reasons the amendment is not futile —
including that it states at minimum a Rehabilitation Act claim against TTUHSC, as to which no
immunity defense applies, see FCR at 11 n.3 — are set forth in Objections 2 through 7 of the
Brief in Support of Plaintiff's Objections, which Plaintiff incorporates by reference.
E. The Trotter addition relates back, and the FCR never analyzed it.
9. The proposed amendment names David Trotter as a defendant. The FCR acknowledges
the request, FCR at 46, but never analyzes it. The relation-back inquiry under Fed. R. Civ. P.
15(c)(1)(C) turns on what Trotter knew or should have known within the Rule 4(m) period, not
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on Plaintiff's knowledge of his existence or diligence in naming him. Krupski v. Costa Crociere
S.p.A., 560 U.S. 538, 548-49 (2010). Defendants have already briefed the addition, Dkt. No. 48,
and the relation-back facts are pleaded at Exhibit 1 ¶ 10.
F. No substantial reason supports denial.
10. No scheduling order has issued, no discovery has begun, and no trial setting exists.
Defendants face no cognizable prejudice: apart from the Trotter addition and the restatement of
the Gibson due-process allegations as a separate count resting on "the same conduct" already
litigated, FCR at 55, the pleading narrows, rather than expands, the claims already presented in
Defendants' motion to dismiss. There is no undue delay: the FCR issued July 14, 2026, and this
motion follows within the objection period. There is no repeated failure to cure deficiencies by
amendments previously allowed — no amendment responding to a court-identified deficiency
has ever been allowed. And futility, the only ground the FCR reached, is addressed above and in
the Objections briefing.
11. The district judge may act on this motion directly in resolving the Objections, may
receive the attached pleading as further evidence under 28 U.S.C. § 636(b)(1), or may recommit
the matter to the Magistrate Judge with instructions. Freeman v. County of Bexar, 142 F.3d 848,
852-53 (5th Cir. 1998).
CONCLUSION
For these reasons, Plaintiff respectfully requests that the Court grant leave to file the Second
Amended Complaint attached to the motion as Exhibit 1, or in the alternative recommit the
question of amendment to the Magistrate Judge with instructions to consider the attached
pleading, and grant such other relief as is just.
Dated: July 28, 2026.
Respectfully submitted,
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/s/ Kevin N. Bass
Kevin N. Bass

Telephone: 512-333-4092
Email: kbassphiladelphia@gmail.com
CERTIFICATE OF SERVICE
I certify that on July 28, 2026, I served this brief on counsel for Defendants of record via the
Court's ECF system.
/s/ Kevin N. Bass

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