# Jenkins v. Tahmahkera

> District Court, N.D. Texas · July 9, 2024

URL: https://www.frixlaw.com/law-library/cases/10672165

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** July 9, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10672165

## How later opinions describe it (automated extraction)

- holding that the district court did not abuse its discretion in denying leave to amend claims barred by the statute of limitations

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10672165. Public record. Not legal advice.