Response to the renewed motion for leave (Dkt. 57)¶

Bass v. TTUHSC, No. 5:25-cv-00244-H-BV (N.D. Tex.) · Dkt. 58 · 2026-08-05 · PDF

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
KEVIN N. BASS,
Plaintiff,
v.
TEXAS TECH UNIVERSITY HEALTH
SCIENCES CENTER, et al.
Defendants.

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CIVIL ACTION NO. 5:25-cv-00244-H-BV

DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S RENEWED MOTION
FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
Defendants Texas Tech University Health Sciences Center (“TTUHSC”) and the
Individual Defendants file this Response in Opposition to Plaintiff’s Renewed Motion for Leave
to File a Second Amended Complaint (Doc. 57) and respectfully show the Court as follows:
I.

INTRODUCTION

Plaintiff’s Renewed Motion for Leave does not present a materially different proposed
pleading, newly discovered facts, or an intervening change in the law. Instead, Plaintiff asks the
Court to revisit issues already addressed by the United States Magistrate Judge after extensive
briefing on Defendants’ Motion to Dismiss, Plaintiff’s prior Motion for Leave, Defendants’
Response, and Plaintiff’s proposed Second Amended Complaint.
After considering Defendants’ Motion to Dismiss, Plaintiff’s proposed Second Amended
Complaint, and the parties’ briefing, the Magistrate Judge recommended dismissal of Plaintiff’s
claims and further recommended denying leave to amend because amendment would be futile.
(Doc. 54 at 1–2, 56–57). Plaintiff’s renewed motion simply repackages the same request by

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asserting that additional factual allegations now cure the deficiencies identified in the Findings,
Conclusions, and Recommendation. They do not.
Plaintiff’s motion rests on the mistaken premise that the Magistrate Judge recommended
denial because the proposed pleading lacked factual detail—the so-called “closed loop” in which,
on Plaintiff’s telling, a detailed pleading was rejected for its detail while a concise pleading is now
faulted for lacking it. The Findings concluded otherwise. The proposed amendment was found
futile because, even accepting every one of Plaintiff’s factual allegations as true, the proposed
complaint still failed to overcome the jurisdictional, immunity, standing, and clearly-establishedlaw deficiencies governing Plaintiff’s claims. (Doc. 54 at 56–57). Those are legal defects, not gaps
in a factual narrative, and no quantum of additional or restored detail can cure them. Reorganizing
allegations or adding factual detail does not alter those legal conclusions. Tellingly, even the single
claim as to which no immunity defense applies—Plaintiff’s Rehabilitation Act claim against
TTUHSC (see Doc. 54 at 11 n.3)—fails on the independent, merits-based grounds the Findings
identified. Plaintiff’s reliance on that lone surviving avenue therefore leads nowhere.
Nor does Plaintiff identify any legitimate basis for granting leave at this stage. Plaintiff has
repeatedly amended or sought leave to amend his pleadings, Defendants have fully briefed both
the merits of Plaintiff’s claims and the futility of amendment, and the Magistrate Judge has now
concluded that Plaintiff has “pleaded his best case” and nevertheless failed to state viable claims.
(Doc. 54 at 56). Rule 15 does not require endless opportunities to repackage the same claims in
successive pleadings.
Accordingly, because Plaintiff’s renewed motion presents no basis to disturb the
Magistrate Judge’s recommendation that amendment would be futile, the motion should be denied.

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LEGAL STANDARD

Federal Rule of Civil Procedure 15(a)(2) provides that leave to amend should be freely
given “when justice so requires.” Fed. R. Civ. P. 15(a)(2). Defendants do not dispute that this
standard reflects “a bias in favor of granting leave to amend,” and that leave should not be denied
absent a “substantial reason.” Stripling v. Jordan Prod. Co., 234 F.3d 863, 872 (5th Cir. 2000). But
that “generous standard is tempered by the necessary power of a district court to manage a case,”
Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 566 (5th Cir. 2003), and “[l]eave to amend is
in no way automatic,” Marucci Sports, L.L.C. v. Nat’l Collegiate Athletic Ass’n, 751 F.3d 368, 378
(5th Cir. 2014). The decision whether to grant leave remains within the Court’s sound discretion,
Foman v. Davis, 371 U.S. 178, 182 (1962), and the Court may deny leave based on “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.” Schiller, 342 F.3d at 566; accord Marucci, 751 F.3d at 378; Rosenzweig v. Azurix
Corp., 332 F.3d 854, 864 (5th Cir. 2003).
Futility is the ground on which the Magistrate Judge relied here, and it is dispositive. “An
amendment is futile if it would fail to survive a Rule 12(b)(6) motion.” Marucci, 751 F.3d at 378.
A court therefore evaluates a proposed amended complaint under “the same standard of legal
sufficiency as applies under Rule 12(b)(6).” Stripling, 234 F.3d at 873. Where a proposed amended
complaint does not cure the legal deficiencies identified by the Court or remains subject to
dismissal as a matter of law, denial of leave is not an abuse of discretion. Marucci, 751 F.3d at
378; see also Herrmann Holdings Ltd. v. Lucent Techs. Inc., 302 F.3d 552, 566 (5th Cir. 2002).
Equally important, the liberal amendment policy has limits. “[A]t some point a court must decide
that a plaintiff has had fair opportunity to make his case; if, after that time, a cause of action has

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not been established, the court should finally dismiss the suit.” Jacquez v. Procunier, 801 F.2d
789, 792 (5th Cir. 1986). A plaintiff may not “continue to amend or supplement [his] pleadings
until [he] stumble[s] upon a formula that carries [him] over the threshold.” Id. That principle
applies with full force to a pro se litigant: leave “is not required . . . if the plaintiff has already
pleaded his ‘best case,’” particularly where he “does not state what facts he would include in an
amended complaint.” Brewster v. Dretke, 587 F.3d 764, 767–68 (5th Cir. 2009).
Here, the Magistrate Judge has already evaluated Plaintiff’s proposed Second Amended
Complaint in conjunction with Defendants’ Motion to Dismiss and expressly concluded
amendment would be futile. (Doc. 54 at 1–2, 56–57). Plaintiff’s renewed motion provides no basis
to depart from that conclusion.
III.
A.

ARGUMENT AND AUTHORITIES

Plaintiff’s Renewed Motion Merely Reasserts Arguments Already Considered and
Rejected in the Findings, Conclusions, and Recommendation.
Plaintiff’s Renewed Motion presents no materially new basis for granting leave to amend.

Instead, it largely repeats the same arguments advanced in Plaintiff’s prior Motion for Leave (Doc.
43), Defendants’ Response (Doc. 48), his briefing in opposition to Defendants’ Motion to Dismiss,
and now his Objections to the Magistrate Judge’s Findings, Conclusions, and Recommendation
(Doc. 56). The renewed motion simply repackages those arguments in an effort to obtain a different
result.
The central premise of Plaintiff’s motion is that the proposed Second Amended Complaint
now cures the deficiencies identified by the Magistrate Judge because it restores factual allegations
omitted from Plaintiff’s earlier proposed pleading. But the Magistrate Judge did not recommend
denial of leave merely because Plaintiff omitted additional factual detail. Rather, after considering
Plaintiff’s proposed Second Amended Complaint in conjunction with Defendants’ Motion to
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Dismiss and Defendants’ Response in Opposition to Plaintiff’s Motion for Leave (Docs. 27, 48)—
as the Court expressly recognized in its July 14, 2026, Order (Doc. 55)—the Magistrate Judge
concluded that amendment would be futile because the proposed pleading still failed to overcome
the legal deficiencies governing Plaintiff’s claims.
Plaintiff’s renewed motion attempts to recharacterize the Findings as identifying only
“missing facts” that can be supplied through further amendment. That characterization misstates
the Recommendation. The Findings addressed numerous threshold legal barriers—including
sovereign immunity, qualified immunity, standing, the requirements of Ex parte Young, and the
pleading standards applicable to Plaintiff’s constitutional and statutory claims—and concluded
that Plaintiff had not alleged facts sufficient to state viable claims notwithstanding his proposed
amendments. Doc. 54. Simply adding additional factual allegations or reorganizing existing ones
does not alter those legal conclusions.
Nor does Plaintiff’s chart purporting to map additional allegations to portions of the
Findings change the analysis. At most, the chart identifies where Plaintiff has supplemented or
expanded factual allegations. It does not demonstrate that those additional allegations cure the
legal deficiencies identified by the Magistrate Judge or otherwise transform claims that remain
subject to dismissal into plausible claims for relief. The issue before the Court is not whether
Plaintiff has added more factual detail; it is whether the proposed amendment remedies the defects
rendering amendment futile. The Magistrate Judge correctly concluded that it does not.
Accordingly, Plaintiff’s renewed motion provides no persuasive reason for the Court to
revisit the Magistrate Judge’s futility determination or permit yet another amended pleading.

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B.

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Plaintiff’s Additional Allegations Do Not Alter the Futility Analysis.
Plaintiff’s renewed motion is premised on the notion that the proposed Second Amended

Complaint cures the deficiencies identified in the Findings by restoring factual allegations that
appeared in earlier proposed pleadings. That premise misunderstands the basis for the Magistrate
Judge’s recommendation.
The Findings do not conclude that Plaintiff’s claims fail because they lack factual detail.
Rather, accepting Plaintiff’s factual allegations as true, the Magistrate Judge analyzed each
category of claims under the governing legal standards and concluded that the proposed Second
Amended Complaint nevertheless failed to state viable claims for relief. Thus, the deficiency
identified in the Findings was not the absence of factual detail, but Plaintiff’s inability to allege
facts sufficient to satisfy the governing legal standards. The Recommendation addresses, among
other things, sovereign immunity, qualified immunity, standing, the requirements for prospective
relief under Ex parte Young, the pleading standards applicable to Plaintiff’s First Amendment,
procedural due process, Rehabilitation Act, ADA, and retaliation claims, and the insufficiency of
Plaintiff’s allegations as to each. Simply expanding the factual narrative does not alter those legal
conclusions.
Indeed, much of Plaintiff’s renewed motion simply identifies additional allegations that
were available to him long before the Findings issued. Plaintiff’s accompanying chart cites
paragraphs from prior proposed pleadings and attempts to demonstrate that specific facts have now
been restored to the proposed Second Amended Complaint. But the relevant question is not
whether Plaintiff can identify additional facts or further elaborate upon his allegations. The
question is whether those allegations cure the legal deficiencies rendering amendment futile. The
Magistrate Judge concluded that they do not.

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Nor does Plaintiff’s renewed pleading materially alter the legal theories asserted in this
case. Plaintiff acknowledges that the proposed complaint continues to assert the same statutory
and constitutional claims arising from the same underlying events. Although Plaintiff has revised,
expanded, and reorganized portions of the factual allegations, those revisions do not overcome the
jurisdictional barriers, immunity doctrines, or pleading deficiencies identified in the Findings. Rule
15 does not require leave to amend where additional factual allegations leave the governing legal
analysis unchanged.
Ultimately, Plaintiff’s motion invites the Court to revisit the merits of the Magistrate
Judge’s analysis by presenting a revised version of the same claims. That is not the purpose of
Rule 15. As the Magistrate Judge concluded, Plaintiff “has pleaded his best case,” yet still “has
not shown that he can plead sufficient facts to overcome the deficiencies” identified in the
Recommendation. Doc. 54 at 56. Plaintiff’s renewed motion does not change that conclusion.
Accordingly, Plaintiff’s additional allegations do not remedy the legal defects identified in the
Findings, and further amendment would serve only to prolong the litigation without changing the
outcome.
C.

Plaintiff Has Already Been Afforded Ample Opportunity to Present His Claims, and
Further Amendment Would Be Futile.
Plaintiff argues that he has never been afforded a meaningful opportunity to plead his “best

case” because his First Amended Complaint was filed as a matter of course and his subsequent
proposed amendments were never accepted for filing. Relatedly, Plaintiff contends the prior rulings
created a “closed loop” or impossible pleading standard—his detailed pleading rejected under Rule
8 for its detail, and his concise pleading now found futile for lacking detail. Both arguments
overlook the procedural posture of this case and misread the Findings.

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The relevant inquiry is not whether a particular proposed pleading became the operative
complaint. Rather, the question is whether Plaintiff has been afforded a fair opportunity to present
his proposed amendments for the Court’s consideration in determining whether further leave
should be granted. He has. Indeed, the Court expressly recognized that Plaintiff’s later-filed
Motion for Leave was evaluated in connection with Defendants’ Motion to Dismiss when it denied
Plaintiff’s earlier Motion for Leave as moot. Doc. 55.
Plaintiff’s “closed loop” theory fails on its own terms. The order denying leave to file the
detailed pleading did so without prejudice and instructed Plaintiff to replead in conforming form—
it was an invitation to cure, not a bar. Plaintiff accepted that invitation and filed a shortened
pleading, which the Magistrate Judge then evaluated on the merits. That is the ordinary sequence
Rule 15 contemplates, not a trap. More fundamentally, the premise that the concise pleading was
found futile “for lacking detail” misreads the Findings. As shown in Part III.B above, the
Magistrate Judge did not fault the pleading for brevity; the Magistrate Judge held that the claims
fail as a matter of law—for want of sole causation, an interactive-process obligation, standing, a
false statement, clearly established law, and but-for causation. A pleading can be both concise and
legally sufficient; Plaintiff’s cannot be sufficient at any length, because the defects are legal rather
than a matter of degree of detail. There is thus no “closed loop”—only claims that no volume of
allegations can save.
Nor was Plaintiff deprived of notice or an opportunity to cure. From the moment
Defendants moved to dismiss, Plaintiff was on notice of every deficiency now at issue, and the
Fifth Circuit has squarely held that such notice supplies the opportunity to cure: pleading
deficiencies “certainly [a]re brought to counsel’s attention by the defendant’s motion to dismiss,”
and a plaintiff who responds by standing on and repleading his allegations must be assumed to

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have “pleaded his best case.” Jacquez v. Procunier, 801 F.2d 789, 792–93 (5th Cir. 1986). Plaintiff
did exactly that—he responded to the motion, then amended twice in an effort “to cross the
required threshold.” Id. at 792. Having done so, he cannot now claim he was denied a fair chance
to make his case. See Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 566–67 (5th Cir. 2003)
(affirming denial where plaintiff had a “fair opportunity to present its case, but failed to do so”).
Over the course of this litigation, Plaintiff has filed multiple proposed amended complaints,
Defendants have fully responded to Plaintiff’s proposed amendments and explained why
amendment would be futile, and the Magistrate Judge thoroughly evaluated Plaintiff’s proposed
Second Amended Complaint in conjunction with Defendants’ Motion to Dismiss. After carefully
analyzing Plaintiff’s proposed pleading under the applicable legal standards, the Magistrate Judge
concluded that Plaintiff had “pleaded his best case” and that further amendment would be futile.
Doc. 54 at 56. Plaintiff’s Renewed Motion identifies no intervening change in the law, no newly
discovered facts that were previously unavailable, and no materially different allegations that
would alter the Magistrate Judge’s analysis. Nor has Plaintiff identified any factual allegations
unavailable when he filed either his prior Motion for Leave or his proposed Second Amended
Complaint.
Instead, Plaintiff seeks yet another opportunity to revise allegations that have been
available throughout this litigation. By his own account, every fact he now says cures the Findings
was pleaded in his earlier proposed pleading months before the Findings issued—confirming there
are no “newly discovered facts” and that further amendment would merely repackage what
Plaintiff has always had. Rule 15’s liberal amendment policy does not require successive
opportunities to refine or supplement factual allegations after the Court has determined that the
proposed amended complaint remains legally insufficient. A plaintiff may not “continue to amend

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or supplement [his] pleadings until [he] stumble[s] upon a formula that carries [him] over the
threshold.” Jacquez, 801 F.2d at 792. And a proposed pleading that “simply provides more specific
details” or is a “re-write” of a prior one—without curing the governing legal defect—is “an
exercise in futility.” Schiller, 342 F.3d at 569; Marucci Sports, L.L.C. v. Nat’l Collegiate Athletic
Ass’n, 751 F.3d 368, 378–79 (5th Cir. 2014). That principle governs here even though Plaintiff
proceeds pro se: leave “is not required . . . if the plaintiff has already pleaded his ‘best case,’” and
the Magistrate Judge expressly found that Plaintiff has. Brewster v. Dretke, 587 F.3d 764, 767–68
(5th Cir. 2009).
The procedural history of this case demonstrates that Plaintiff has had multiple
opportunities to present his claims, and the Magistrate Judge has already concluded that the
proposed Second Amended Complaint fails to cure the deficiencies identified in Defendants’
Motion to Dismiss. Plaintiff’s Renewed Motion offers no persuasive basis for departing from that
conclusion. Accordingly, the Court should deny Plaintiff’s Renewed Motion for Leave to File a
Second Amended Complaint.
D.

Plaintiff’s Renewed Attempt to Add Dr. Trotter Remains Futile.
Plaintiff again seeks leave to add David Trotter, Ph.D., as a defendant, asserting that the

proposed claims relate back under Federal Rule of Civil Procedure 15(c)(1)(C). Plaintiff’s renewed
motion offers no materially new factual allegations or legal authority warranting a different result.
Nor does it identify any error in the Court’s prior consideration of Plaintiff’s proposed Second
Amended Complaint.
Plaintiff invokes Krupski v. Costa Crociere S.p.A., 560 U.S. 538 (2010), for the proposition
that relation back turns on what Dr. Trotter knew or should have known during the Rule 4(m)
period, not on Plaintiff’s own diligence. Krupski does not aid him. The Supreme Court held that a

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“deliberate choice to sue one party instead of another while fully understanding the factual and
legal differences between the two parties is the antithesis of making a mistake concerning the
proper party’s identity.” Id. at 549. Where “the original complaint and the plaintiff’s conduct
compel the conclusion that the failure to name the prospective defendant . . . was the result of a
fully informed decision as opposed to a mistake,” Rule 15(c)(1)(C)(ii) “[is] not met.” Id. By his
own allegations, Plaintiff was aware of Dr. Trotter’s identity and his role in the underlying events
when this action was filed, yet deliberately chose not to name him as a defendant. Nothing in the
Renewed Motion suggests that Plaintiff misunderstood Dr. Trotter’s role or mistakenly sued
another party in his place. Rather, Plaintiff’s allegations demonstrate a deliberate litigation
choice—not a “mistake concerning the proper party’s identity” within the meaning of Rule
15(c)(1)(C).
The Fifth Circuit has continued to enforce that mistake requirement after Krupski. Rule
15(c) “does not allow an amended complaint adding new defendants to relate back if the newlyadded defendants were not named originally because the plaintiff did not know their identities,”
and “failing to identify individual defendants cannot be characterized as a mistake.” Winzer v.
Kaufman Cnty., 916 F.3d 464, 470 (5th Cir. 2019 (quoting Jacobsen v. Osborne, 133 F.3d 315, 321
(5th Cir. 1998)). A fortiori, a plaintiff who knew a defendant’s identity and role and consciously
declined to sue him has made “a conscious choice to sue one party and not another,” which “does
not constitute a mistake and is not a basis for relation back.” Sanders-Burns v. City of Plano, 594
F.3d 366, 380 (5th Cir. 2010). This defect is independent of Plaintiff’s diligence, so Krupski’s
rejection of a diligence requirement is beside the point.
The point is not academic. Section 1983 claims in Texas borrow the State’s two-year
personal-injury limitations period. Winzer, 916 F.3d at 469. The conduct Plaintiff attributes to Dr.

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Trotter occurred in late 2023 and early 2024. Accordingly, any claim first asserted against him now
is untimely unless it relates back under Rule 15(c)—and it does not. An untimely amendment
adding a defendant “is futile unless, under Rule 15(c), it relates back to the date of the original
filing.” Jacobsen, 133 F.3d at 320. A court in this District recently applied exactly this reasoning
to deny a pro se Section 1983 plaintiff leave to add a new individual defendant where the plaintiff
“only recently learned of [the defendant’s] identity, [and did] not [allege] that he was mistaken as
to her identity”; because relation back did not apply, amendment “would be futile.” Mornes v.
Valdez, 414 F. Supp. 3d 888, 892 (N.D. Tex. 2019).
Moreover, and independent of relation back, adding Dr. Trotter does not cure the legal
deficiencies identified in the Findings. The proposed claims against Dr. Trotter arise from the same
underlying allegations—the conduct of the disciplinary process—that the Magistrate Judge
concluded fail to state viable federal claims and are barred by qualified immunity. (Doc. 54 at 52–
53). Adding another defendant to allegations that already fail as a matter of law would not alter the
futility analysis. See Winzer, 916 F.3d at 471 (denial of leave to add defendants proper where the
claims would be futile).
For these reasons, and for the reasons previously set forth in Defendants’ Response in
Opposition to Plaintiff’s prior Motion for Leave, Plaintiff’s renewed request to add Dr. Trotter
should likewise be denied.
IV.

CONCLUSION AND PRAYER

Plaintiff’s Renewed Motion identifies no intervening change in the law, no newly
discovered facts, and no materially different proposed pleading that would justify revisiting the
Magistrate Judge’s determination that amendment would be futile. Instead, Plaintiff largely

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repackages arguments and allegations previously presented to the Court and considered in the
Findings, Conclusions, and Recommendation.
The Magistrate Judge thoroughly evaluated Plaintiff’s proposed Second Amended
Complaint together with Defendants’ Motion to Dismiss and expressly recommended denying
leave because amendment would be futile. (Doc. 54 at 56–57). Plaintiff’s renewed effort to
supplement or reorganize his allegations does not alter that analysis. Having already considered
Plaintiff’s proposed Second Amended Complaint and concluded that amendment would be futile,
the Court should decline to revisit that determination through Plaintiff’s renewed motion raising
substantially the same issues. Rule 15 does not require the Court to permit successive amendments
where the proposed pleading remains legally insufficient. The Court has likewise already denied
Plaintiff’s earlier Motion for Leave as moot after concluding that the later-filed motion had been
fully considered in connection with the Motion to Dismiss. See Doc. 55.
WHEREFORE, PREMISES CONSIDERED, Defendants Texas Tech University Health
Sciences Center and the Individual Defendants respectfully request that the Court deny Plaintiff’s
Renewed Motion for Leave to File Second Amended Complaint in its entirety and grant
Defendants such other and further relief, at law or in equity, to which they may be justly entitled.
Respectfully submitted,
KEN PAXTON
Attorney General
BRENT WEBSTER
First Assistant Attorney General
RALPH MOLINA
Deputy First Assistant Attorney General
AUSTIN KINGHORN
Deputy Attorney General for Civil Litigation

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KIMBERLY GDULA
Chief, General Litigation Division
/s/ Scott D. Smith______________
SCOTT D. SMITH
Assistant Attorney General
Texas Bar No. 24011874
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711−2548
Telephone: (512) 917-3132
Division Fax: (512) 477-2348
Email: scott.smith@oag.texas.gov
Counsel for Defendants

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CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing document was served on August 5,
2026, via the Court’s ECF system to:
Kevin N. Bass
Phone: 512-333-4092
Email: kbassphiladelphia@gmail.com
Pro Se Plaintiff
/s/ Scott D. Smith________
SCOTT D. SMITH
Assistant Attorney General

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