Jenkins v. Tahmahkera

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

SHANELLE JENKINS,

Plaintiff,

v. No. 4:23-cv-01207-P

OFFICER MICHAEL TAHMAHKERA,

ET AL.,

Defendants.

MEMORANDUM OPINION & ORDER

Before the Court are Defendants’ Motions to Dismiss. ECF Nos. 8,

11, 26, 29, 32. Having considered the Motions, briefs, and applicable law,

the Court concludes the Motions should be and are hereby GRANTED.

BACKGROUND

Plaintiff Shanelle Jenkins brought this wrongful death suit on behalf

of her deceased husband, Robert Miller, seeking damages and equitable

relief under 42 U.S.C. § 1983. Plaintiff alleges the Defendants, Michael

Tahmahkera, Jordan Beene, Jason Wheeler, E. Kautz, S. James,

Michael Swan, Nicholas Bernal, BJ Odonnell, Sharon Singleton, and

Sheldon Kelsey each contributed to the wrongful death of Mr. Miller.

On July 31, 2019, police arrested Mr. Miller, a homeless man, for

eight outstanding warrants. At Tarrant County Jail, officers used force

against Mr. Miller and placed him in restraints. While in restraints, an

officer used OC spray (also known as “pepper spray”) on Mr. Miller. The

OC spray caused Mr. Miller to experience difficulty breathing. Two

nurse Defendants (O’Donnell & Singleton) tended to Mr. Miller and

allegedly failed to provide necessary medical treatment. At some point,

his heart stopped, and paramedics resuscitated him. However, on

August 4, 2019, Mr. Miller died in the hospital.

Plaintiff learned of Mr. Miller’s death “several days later.” But it was

not until almost two years later, on July 30, 2021, that Plaintiff sued

Tarrant County (the “first lawsuit”). Then, on August 12, 2021, Plaintiff

submitted public records requests to the Texas Department of Public

Safety (“TxDPS”), the agency in charge of investigating deaths while in

police custody. After receiving no information, Plaintiff amended her

complaint to join TxDPS. On November 30, 2021, Plaintiff learned the

officers used OC spray on Mr. Miller. Then, on February 11, 2022, all

federal-law claims were dismissed for lack of jurisdiction. On April 13,

2022, TxDPS released a report detailing a full investigation of the

incident, and on July 8, 2022, the court denied Plaintiff’s motion for

relief from judgment.

Now, almost two years after filing the first lawsuit and over four

years after Mr. Miller’s death, Plaintiff sues a new troupe of Defendants.

Each of the nine served Defendants have filed Motions to Dismiss, which

are ripe for the Court’s review.

LEGAL STANDARD

Rule 12(b)(6) allows defendants to move to dismiss an action if the

Plaintiff fails to state a claim upon which relief can be granted. See FED.

R. CIV. P. 12(b)(6). In evaluating Rule 12(b)(6) motions, courts accept all

well-pleaded facts as true and view them in the light most favorable to

the Plaintiff. See Inclusive Cmtys. Project, Inc. v. Lincoln Prop. Co., 920

F.3d 890, 899 (5th Cir. 2019) (quoting Campbell v. Wells Fargo Bank,

N.A., 781 F.2d 440, 442 (5th Cir. 1986)). “Further, ‘all questions of fact

and any ambiguities in the controlling substantive law must be resolved

in the Plaintiff’s favor.’” Id. (quoting Lewis v. Fresne, 252 F.3d 352, 357

(5th Cir. 2001)). However, courts are not bound to accept as true legal

conclusions couched as factual allegations. See In re Ondova Ltd., 914

F.3d 990, 993 (5th Cir. 2019) (quoting Papasan v. Allain, 478 U.S. 265,

286 (1986)). The well-pleaded facts must permit the court to infer more

than the mere possibility of misconduct. See Hale v. King, 642 F.3d 492,

499 (5th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

That is, the complaint must allege enough facts to move the claim across

the line from conceivable to plausible. See Turner v. Pleasant, 663 F.3d

770, 775 (5th Cir. 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). Determining whether the plausibility standard has

been met is a “context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.” Id. (quoting Iqbal,

556 U.S. at 663–64).

ANALYSIS

All nine Defendants have moved to dismiss Plaintiff’s claims in five

separate Motions to Dismiss. See ECF Nos. 8, 11, 26, 29, 32. Defendant

Tahmahkera (ECF No. 32) asks the Court to dismiss Plaintiff’s claims

as time-barred by the applicable statute of limitations. Defendants

Beene and Kelsey (ECF No. 8), as well as Defendants O’Donnell and

Singleton (ECF No. 26), move to dismiss because Plaintiff’s claims are

(1) barred by the statute of limitations, and (2) Defendants are entitled

to qualified immunity. Defendant Swan (ECF No. 11) and Defendants

Wheeler, Kautz, and James (ECF No. 29) ask the Court to dismiss

because (1) Plaintiffs claims are barred by the statute of limitations, (2)

Defendants are entitled to qualified immunity, and (3) Plaintiff fails to

state a claim against them under Rule 12(b)(6). All Defendants argue

that Plaintiff’s claims are time-barred for the same reasons. Having

considered the Motions, the Court agrees.

A. Statute of Limitations Accrual Date

“[A] complaint may be subject to dismissal if its allegations

affirmatively demonstrate that the Plaintiff’s claims are barred by the

statute of limitations and fail to raise some basis for tolling.” Frame v.

City of Arlington, 657 F.3d 215, 240 (5th Cir. 2011) (citing Jones v. Bock,

549 U.S. 199, 215 (2007)). A court should grant a motion to dismiss when

it is evident on the face of the pleadings that the action is time-barred.

Jones v. Alcoa, Inc., 339 F.3d 359, 367 (5th Cir. 2003) (citing Kansa

Reinsurance v. Cong. Mortg. Corp., 20 F.3d 1362, 1366–70 (5th Cir.

1994)).

Federal courts look to state statutes of limitations for personal-injury

torts under § 1983. Winfrey v. Rogers, 901 F.3d 483, 492 (5th Cir. 2018)

(citing Wallace v. Kato, 549 U.S. 384, 397 (2007)). “In Texas, the

applicable limitations period is two years.” Id. (citing TEX. CIV. PRAC. &

REM. CODE ANN. § 16.003(a)) (“A person must bring suit not later than

two years after the day the cause of action accrues in an action for injury

resulting in death.”). However, “the accrual date of a § 1983 cause of

action is a question of federal law that is not resolved by reference to

state law.” Id.

Under federal law, “[t]he limitations period begins to run when the

Plaintiff becomes aware that he has suffered an injury or has sufficient

information to know that he has been injured.” Stringer v. Town of

Jonesboro, 986 F.3d 502, 510 (5th Cir. 2021) (quoting Redburn v. City of

Victoria, 898 F.3d 486,496 (5th Cir. 2018)). Furthermore, “[a] Plaintiff

need not realize that a legal cause of action exists; a Plaintiff need only

know the facts that would support a claim.” Id. “[A]wareness for accrual

purposes does not mean actual knowledge; rather, all that must be

shown is the existence of circumstance that would lead a reasonable

person to investigate further.” King-White v. Humble Indep. Sch. Dist.,

803 F.3d 754, 762 (5th Cir. 2015) (cleaned up).

Plaintiff alleges the use of force that caused Mr. Miller’s death

occurred on July 31, 2019, and Mr. Miller died on August 1, 2019. ECF

No. 1 at 6, 31. Plaintiff further alleges that she learned of Mr. Miller’s

death “several days” after his death on August 1, 2019. Id. at 32. Taking

Plaintiff’s assertions as true, the Court concludes that—at the latest—

Plaintiff’s cause of action accrued “several days” after Mr. Miller’s death

on August 1, 2019. That is over four years and ten months ago—well

past the two-year statute of limitations.

In wrongful death suits, the cause of action often accrues at the time

of death. See McElvy v. SW. Corr., LLC, No. 3:19-CV-1264-N, 2022 WL

3567182, at *2 (N.D. Tex. Aug. 17, 2022) (Godbey, J.). And “[w]hen a

plaintiff in a civil rights action[] knows or has reason to know of an

injury and the cause of that injury—such as arrest by police officers that

he believes to be wrongful or use of force by prison guards that he

believes to be excessive—the limitations period begins, and he acquires

a duty to fully investigate his claims.” Id. at *7. Here, Plaintiff learned

of Mr. Miller’s death several days after August 1, 2024. Even if Plaintiff

did “did not know that she has a legal cause of action,” Plaintiff’s

awareness of Mr. Miller’s death in police custody “would lead a

reasonable person to investigate further.” See Piotrowski v. City of

Hous., 237 F.3d 567, 576 (5th Cir. 2001). But, Plaintiff clearly believed

she had a cause of action arising out of Mr. Miller’s death, as she filed

her first lawsuit “on July 30, 2021, the eve of the expiration of the two-

year statute of limitations.” Jenkins v. Tarrant Cnty. Sheriff’s Off., No.

4:21-cv-910-O, 2022 WL 3012583, at *1 (N.D. Tex. July 8, 2022)

(O’Connor, J.).

Plaintiff nonetheless argues that her cause of action accrued “no

earlier than November 30, 2021,” when she read a New York Times

article about Mr. Miller’s death. ECF No. 22 at 20. Plaintiff alleges that

it was only upon reading the article that she “had reason to investigate

a causal connection between Defendants’ actions and the deprivations

of constitutional rights.” Id. Additionally, Plaintiff argues the claims

against the two nurse Defendants accrued on April 13, 2022, when

TxDPS released its report. ECF No. 37 at 19. Plaintiff cites one case

within the Fifth Circuit to support these conclusions—Doe 1 v. Baylor.

See 240 F. Supp. 3d 646, 664 (W.D. Tex. 2017) (Pitman, J.); ECF No. 37

at 21. In Baylor, multiple students brought Title IX claims against

Baylor University, alleging that the school was deliberately indifferent

to their reported sexual assaults. Doe 1, 240 F. Supp. 3d at 664. The

court held that the plaintiffs’ claims did not accrue on the date of the

assaults, but when they were alerted via media investigation that their

assaults were connected to Baylor’s institutional failure. See id. at 663.

Plaintiff takes Baylor to mean that she did not have reason to know

“the existence of circumstance that would lead a reasonable person to

investigate further” until the New York Times article was published on

November 30, 2021, and the TxDPS report was published on April 13,

2022. King-White, 803 F.3d at 762; see ECF No. 22 at 20; ECF No. 37 at

19. However, the fact that Plaintiff sued the Tarrant County Sherriff’s

Office in her first lawsuit distinguishes her case from Baylor. While in

Baylor, the plaintiffs learned of Baylor’s causal connection to the injury

from media reports, Plaintiff here was aware of, and had reason to

investigate, the causal connection between Defendants and Mr. Miller’s

death. Without such a connection, she would have had no basis to sue.

In fact, Plaintiff would have had reason to investigate (and should have

conducted an investigation) well before filing her first lawsuit, as any

party or attorney who files a pleading with the court certifies “the

factual contentions have evidentiary support.” FED. R. CIV. P. 11(b)(3);

see also MODEL RULES OF PRO. CONDUCT r. 3.1 (AM. BAR ASS’N 2024) (“A

lawyer shall not bring or defend a proceeding, or assert or controvert an

issue therein, unless there is a basis in law and fact for doing so that is

not frivolous.”). The fact Plaintiff filed her first lawsuit against the

Sherriff’s Office belies her argument that she did not have knowledge of

circumstances that would lead a reasonable person to investigate

further.

This conclusion is consistent with Judge O’Connor’s holding in

Plaintiff’s first lawsuit and the Fifth Circuit’s opinion affirming that

holding. As Judge O’Connor observed, Plaintiff’s claims accrued on or

about July 31, 2019. See Jenkins, 2022 WL 3012583, at *1 (N.D. Tex.

July 8, 2022) (O’Connor, J.) (“[Plaintiff] waited until July 30, 2021, the

eve of the expiration of the two-year limitations period, to file her

Original Complaint.”). And when Plaintiff attempted to join the same

nine Defendants in this case, Judge O’Connor explained that Plaintiff’s

claims against these Defendants were time-barred. See id. at *3

(“[Plaintiff] simply seeks leave to sue other defendants (against whom

limitations has run).”). On appeal, the Fifth Circuit held that Plaintiff’s

two-year delay in beginning her investigation demonstrated a lack of

diligence. Jenkins v. Tarrant Cnty. Sheriff’s Off., No. 22-10244, 2023 WL

5665774, at *2 (5th Cir. Sept. 1, 2023) (“[G]iven that Jenkins waited two

years before beginning her investigation, she did not exercise due

diligence.”). Thus, the Court concludes that upon learning of Mr. Miller’s

death in police custody “several days” after August 1, 2019, Plaintiff had

knowledge of circumstances that would lead a reasonable person to

investigate further. Her delay in doing so does not delay the accrual date

of her cause of action. Accordingly, Plaintiff’s claims are time-barred.

B. Tolling Provisions

Plaintiff alternatively argues that the statute of limitations should

be equitably tolled. See ECF No. 22 at 21. “When a federal cause of action

borrows a state statute of limitations, coordinate tolling rules are

usually borrowed as well.” King-White, 803 F.3d at 764 (quotation

omitted). Thus, “state equitable tolling principles control in § 1983

cases.” Id. (citing Rotella v. Pederson, 144 F.3d 892, 897 (5th Cir. 1998)).

This includes tolling based on fraudulent concealment and the discovery

rule. See id.

The discovery rule is unhelpful to Plaintiff in this case. Although this

Court applies the federal accrual standard, under Texas law, a cause of

action for wrongful death accrues “on the death of the injured person.”

TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(b). But for causes of action

using the Texas accrual standard, the discovery rule provides a “very

limited exception to statutes of limitations.” King-White, 803 F.3d at 764

(citing Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455

(Tex. 1996)). The judicially-crafted discovery rule “defers accrual of the

cause of action if the nature of the injury incurred is inherently

undiscoverable and the evidence of injury is objectively verifiable.” Id.

In such a circumstance, “the cause of action does not accrue until the

plaintiff knows or reasonably should have known of the injury.” Id.

Thus, the Texas discovery rule is essentially the federal accrual

standard discussed above. See id. (“[T]he accrual rule applicable to the

claims in this case is, essentially, a ‘discovery’ rule.”). Accordingly, even

if the nature of the injury here was inherently undiscoverable (it is not),

the discovery rule will not toll the statute of limitations because Plaintiff

knew of the injury several days after Mr. Miller’s death and had reason

to investigate.

Plaintiff’s fraudulent concealment argument is equally unavailing.

Plaintiff alleges that Tarrant County and TxDPS—the defendants in the

first lawsuit—concealed relevant information about Mr. Miller’s death

and the identities of Defendants. See ECF No. 1 at 37–38. In Texas, the

fraudulent concealment doctrine estoppes defendants from using a

statute of limitations defense when those defendants were “under a duty

to make disclosure but fraudulently conceal[ed] the existence of a cause

of action from the party to whom it belongs.” King-White, 803 F.3d at

764 (citing Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex.1983)). Notably,

however, Plaintiff does not contend that any present defendants were

obliged to disclose anything, or even that any defendants fraudulently

concealed information. See ECF No. 1. Plaintiff’s allegations relate only

to Tarrant County and TxDPS, which are not parties to this suit. See id.

at 37–38. And fraudulent concealment “requires evidence that the

defendant actually knew the plaintiff was, in fact, wronged, and

concealed that fact to deceive the plaintiff.” Earle v. Ratliff, 998 S.W.2d

882, 888 (Tex. 1999) (emphasis added); see also In re Amazon.com

Services, LLC, 03-23-00634-CV, 2023 WL 8791266, at *5 (Tex. App.—

Austin Dec. 20, 2023, no pet.) (mem. op.) (holding fraudulent

concealment allegations against the defendant were insufficient because

they were premised on the alleged conduct of other persons). Thus,

because Plaintiff has not alleged that Defendants engaged in the

coverup, the fraudulent concealment doctrine will not toll Plaintiff’s

statute of limitations. And in any event, as Plaintiff points out in her

Complaint, Judge O’Connor rejected Plaintiff’s contention that the

County “intentionally withheld information.” ECF No. 1 at 40.

And to the extent Plaintiff argues that anyone fraudulently

concealed the identities of Defendants in this case, such an argument is

easily rejected. “Under Texas law, fraudulent concealment that tolls

limitations pertains to concealment of a cause of action, not concealment

by a defendant of his identity.” Cox v. City of Ft. Worth, Tex., 762 F.

Supp. 2d 926, 936–37 (N.D. Tex. 2010) (McBryde, J.).

Finally, the Court notes that equitable tolling, in general, “is

appropriate when, despite all due diligence, a Plaintiff is unable to

discover essential information bearing on the existence of the claim.”

Fisher v. Johnson, 174 F.3d 710, 715 n.14 (5th Cir. 1999).

Equitable tolling does not apply when the late filing is due to the

claimants’ failure to exercise due diligence in preserving their legal

rights.” Hand v. Stevens Transp., Inc. Emp. Benefit Plan, 83 S.W.3d 286,

294 (Tex. App.—Dallas 2002, no pet.). Here, Plaintiff waited two years

to file her first lawsuit and began issuing public information requests

only after filing—over two years after Mr. Miller’s death. See ECF No. 1

at 37; ECF No. 22 at 22. On top of that, the Fifth Circuit made clear in

Plaintiff’s appeal that she “did not exercise due diligence.” Jenkins v.

Tarrant Cnty. Sherriff’s Off., No. 22-10244, 2022 WL 5665774 (5th Cir.

Sep. 1, 2023) (emphasis added). Thus, equitable tolling is not

appropriate.

C. Leave to Amend

Under FED. R. Civ. P. 15(a), leave to amend should be freely given

when justice so requires. Forman v. Davis, 371 U.S. 178, 183 (1962).

While courts have “a bias in favor of granting leave to amend,” Martin’s

Herend Imps., Inc. v. Diamond & Gem. Trading U.S. Am. Co., 195 F.3d

765, 770 (5th Cir. 1999), it is within a court’s discretion to deny leave to

amend if doing so would be futile. Stripling v. Jordan Prod. Co., 234 F.3d

863, 872-73 (5th Cir. 2000). Here, the statute of limitations bars the

claims, and Plaintiff cannot turn back the clock. Thus, it would be futile

to grant leave to amend. See Winzer v. Kaufman Cnty., 916 F.3d 464,

471 (5th Cir. 2019) (holding that the district court did not abuse its

discretion in denying leave to amend claims barred by the statute of

limitations). Consequently, Plaintiff's request for leave to amend is

DENIED.

CONCLUSION

For the reasons above, the Court GRANTS Defendants’ Motions to

Dismiss. ECF Nos. 8, 11, 26, 29, & 32. Consequently, Plaintiffs claims

are DISMISSED with prejudice, and Plaintiff's Motion for Leave to

Amend is DENIED.

SO ORDERED on this 9th day of July 2024.

Mark T. Pittman

UNITED STATED DISTRICT JUDGE