“[T]o the extent Plaintiffs are arguing that the limitations clock should not have run until they discovered or should have discovered their injuries, they are arguing for application of the federal accrual rule that we already apply.”
How later courts described this case
- “[T]o the extent Plaintiffs are arguing that the limitations clock should not have run until they discovered or should have discovered their injuries, they are arguing for application of the federal accrual rule that we already apply.”
- “The statute of limitations period commences once the plaintiff acquires possession of two critical facts: (1) an injury has occurred; and (2) the identity of the person who inflicted the injury.”
- describing an earlier suit based on “a diligent plaintiff’s mere suspicion or subjective belief” as, “standing alone, insufficient to establish accrual”
- “Rule 26(d)’s proscription sweeps broadly: not only may a party not ‘serve’ discovery, it may not even ‘seek’ discovery from any source until after the Rule 26(f) conference.”
Written by the judges who cited it.
The opinion
Case: 24-10724 Document: 84-1 Page: 1 Date Filed: 08/19/2025
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
August 19, 2025
No. 24-10724 Lyle W. Cayce
____________ Clerk
Shanelle Jenkins, as Surviving Spouse and Representative of the
Estate of Robert Geron Miller,
Plaintiff—Appellant,
versus
Michael Tahmahkera, Officer; Jordan Beene, Officer; Jason
Wheeler, Officer; E. Kautz, Officer; S. James, Officer; Michael
Swan, Officer; BJ ODonnell, Nurse; Sharon Singleton, Nurse;
Sheldon Kelsey, Sergeant; Nicholas Bernal, Officer,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:23-CV-1207
______________________________
Before Higginson, Ho, and Wilson, Circuit Judges.
Cory T. Wilson, Circuit Judge:
Shanelle Jenkins filed this wrongful death and excessive force suit on
November 30, 2023, on behalf of her husband, Robert Geron Miller, who
died in the custody of the Tarrant County Jail on August 1, 2019. The
defendants moved to dismiss Jenkins’s claims as barred by Texas’s two-year
statute of limitations, and the district court granted that motion. We affirm.
Case: 24-10724 Document: 84-1 Page: 2 Date Filed: 08/19/2025
No. 24-10724
I.
On July 31, 2019, Robert Miller was arrested on eight outstanding
warrants. A state-court judge ordered Miller to pay a $300 fine or spend the
night in the Tarrant County Jail. Homeless, Miller opted for the latter. But
on August 1, 2019, Miller died in the custody of the Tarrant County Jail.
Authorities never notified Shanelle Jenkins, Miller’s wife, of his death.
Instead, she learned of her husband’s passing a few days later by reading a
local newspaper article. Even after reading that article, Jenkins alleges that
she lacked any knowledge of how Miller died or who may have been involved.
And “despite several direct requests” in the wake of Miller’s death, Jenkins
alleges that she was unable to gather any information from “Tarrant County
and the [Texas] Rangers.” 1
Nevertheless, on July 30, 2021, just two days shy of two years after
Miller’s death, Jenkins sued the Tarrant County Sheriff’s Office and the
Tarrant County Sheriff (together, Tarrant County) asserting claims for, inter
alia, wrongful death and excessive force. Specifically, Jenkins alleged that
Tarrant County jailers had “committed unlawful acts against” Miller,
causing his death. Aside from those generic allegations, Jenkins did not plead
any specific factual allegations as to how Tarrant County employees caused
Miller’s death.
_____________________
1
Jenkins’s operative complaint in this action does not allege when these requests
for information were made to Tarrant County and the Texas Rangers. The complaint in
her prior lawsuit, of which we take notice as a public record, is likewise devoid of any such
allegation. See Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017–18 (5th Cir. 1996)
(“Normally, in deciding a motion to dismiss for failure to state a claim, courts must limit
their inquiry to the facts stated in the complaint and the documents either attached to or
incorporated in the complaint. However, courts may also consider matters of which they
may take judicial notice.”).
2
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No. 24-10724
Other than vaguely alleging that she made “several direct requests”
some time before she filed suit, Jenkins did little if anything else to investigate
her claims until weeks after she filed her complaint. 2 Jenkins v. Tarrant Cnty.
Sheriff’s Office, No. 22-10244, 2023 WL 5665774, at *2 (5th Cir. Sept. 1,
2023) (per curiam) (unpublished). Even then, rather than avail herself of the
district court’s subpoena power or propound discovery under the Federal
Rules of Civil Procedure, she relied solely upon public records requests
(PRRs) and informal telephone calls—the first of which occurred more than
two years after Miller’s death: On August 12, 2021, Jenkins filed an initial
PRR with the Texas Department of Public Safety (TDPS), seeking details
from TDPS’s investigation into Miller’s death. Receiving no substantive
response, Jenkins called TDPS four times over the ensuing weeks, to no
avail. She filed a second PRR with TDPS on September 7, 2021. Again,
TDPS did not substantively respond. More than a month later, on October
22, 2021, Jenkins amended her complaint, requesting that the court order
TDPS to respond to her PRRs. The same day, Jenkins filed a PRR with
Tarrant County, but Tarrant County declined to produce the requested
information. 3 From the record before us, Jenkins did not utilize any other
_____________________
2
Jenkins’s indefinite “direct requests” are presumably the “determined efforts”
to which the dissent refers. Post, at 18. But as discussed infra, these initial efforts are hardly
“determined” enough to justify tolling the statute of limitations, and by her own telling, all
the explicit attempts Jenkins took to investigate her husband’s death did not occur until
more than two years after learning of his death and weeks after she filed her first lawsuit.
3
Neither TDPS nor Tarrant County were required to respond to Jenkins’s PRRs
because each PRR sought information relevant to pending litigation against a state actor.
See Tex. Gov. Code § 552.103 (exempting from the Open Records Act “information
relating to litigation . . . to which the state or a political subdivision is or may be a party or
to which an officer or employee of the state or a political subdivision, as a consequence of
the person’s office or employment, is or may be a party”). But the litigation exception to
the Open Records Act did not prohibit Jenkins from seeking discovery from either entity
under the Federal Rules of Civil Procedure.
3
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No. 24-10724
mechanism to propound—or seek to compel—discovery from Tarrant
County or TDPS during the pendency of her first lawsuit. 4
With her belated PRRs adducing no substantive responses, and
without propounding any other discovery, Jenkins’s complaint suffered from
a dearth of factual allegations to support her claims. Therefore, on the
defendants’ motion, the district court dismissed her federal claims with
prejudice, declined to exercise supplemental jurisdiction over Jenkins’s state
law claims and dismissed them without prejudice, and entered a final
judgment on February 11, 2022. Jenkins, 2023 WL 5665774, at *1.
The day after the district court dismissed her claims, Tarrant County
responded to Jenkins’s PRR, disclosing five pages of narrative statements by
Tarrant County jailers. Two months later, in April 2022, TDPS followed,
providing Jenkins 252 pages of documents responsive to her pending PRRs. 5
Collectively, those 257 pages contained details about Miller’s death that
Jenkins previously lacked. On May 27, 2022, Jenkins moved under Federal
Rule of Civil Procedure 60(b) for relief from the judgment dismissing her
_____________________
4
The dissent decries our “nitpicking Jenkins’s litigation strategy,” and questions
whether the time was ripe for discovery at any point during Jenkins’s first suit. Post, at 27–
28 & n.4. But there is no allegation or record evidence that Jenkins even sought civil
discovery before the district court at the time. Still, the dissent apparently faults the district
court for not sua sponte “setting a schedule for discovery.” See id. at 19. Pointing to her
complaint’s suggestion that her “allegations [we]re likely to have evidentiary support after
a reasonable opportunity for further investigation or discovery,” id. at 27, and her motion
to stay pending the district court’s ruling on whether Tarrant County and TDPS must
answer her PRRs, the dissent posits that Jenkins in fact requested discovery. Id. But
Jenkins herself expressly rejected that characterization in the district court; she adamantly
denied that her PRRs were requests for discovery.
5
It appears that TDPS and Tarrant County responded to Jenkins’s PRRs once
litigation concluded, consistent with § 552.103. See supra note 3.
4
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No. 24-10724
claims with prejudice. The district court denied that motion on July 8, 2022,
and Jenkins appealed.
This court affirmed the dismissal of Jenkins’s complaint and the
subsequent denial of her Rule 60(b) motion. Jenkins, 2023 WL 5665774, at
*1. Our court emphasized that the district court “gave [Jenkins] ample
warning and time to fill out her threadbare complaint,” and only “[a]fter
Jenkins failed to resolve [that] problem in a timely fashion” did the district
court disallow Jenkins’s second request for leave to amend. Id. Our court
affirmed the denial of Jenkins’s Rule 60(b) motion because the 257 pages
received from Tarrant County and TDPS were easily discoverable, Jenkins
“did not exercise due diligence” in investigating her claims, and Jenkins
failed to show that “the public records agency intentionally delayed in getting
her the evidence.” Id. at *2. 6
Jenkins filed a second lawsuit on November 30, 2023—more than two
years after she filed her initial complaint—against ten individual defendants
who were not parties to her original suit. In her new complaint, Jenkins again
asserted excessive force and wrongful death claims but also included a more
detailed factual account of Miller’s death. She alleged that she first learned
the general cause of Miller’s death on November 30, 2021, 7 four months after
_____________________
6
The dissent glosses over that these issues—whether Tarrant County and TDPS
intentionally concealed information from Jenkins—have been considered, and rejected, by
our court before. In her appeal from the first suit’s dismissal, this court held that Jenkins
failed to make a showing of intentional concealment and failed to exercise due diligence to
investigate her potential claims. Jenkins, 2023 WL 5665774, at *2. Jenkins fails to
articulate why we should or may disregard that holding now.
7
Jenkins’s brief on appeal proceeds under the assumption that she read this article
on November 30, 2022, but her complaint alleges that she read it on November 30, 2021—
exactly two years prior to filing this action. At the Rule 12(b)(6) stage, we review a
plaintiff’s complaint, and accept the factual allegations set forth therein as true. Petersen v.
5
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No. 24-10724
filing her original lawsuit, when she read a September 2021 article published
in The New York Times that reported that Miller died after being thrown to
the ground, pepper sprayed, and “dragged facedown to a cell.” 8 Jenkins
further asserted that Tarrant County and TDPS failed to provide her with
accurate information regarding her husband’s death to conceal any cause of
action she may have had against them and that Tarrant County and others
“intentionally concealed information and relevant documentation for the
benefit of the Individual Defendants.” But other than that bare-bones
allegation, she alleges nothing to support that any of the named individual
defendants did anything to withhold information from Jenkins or otherwise
acted in concert with Tarrant County along those lines.
The defendants 9 moved to dismiss Jenkins’s claims under Rule
12(b)(6) as barred by the statute of limitations and insufficiently pled to
_____________________
Johnson, 57 F.4th 225, 231 (5th Cir. 2023). Thus, we assume that Jenkins first saw the
article on November 30, 2021, as pled in her complaint.
8
The New York Times article was published on September 25, 2021—over two
months before Jenkins alleges that she read it. In it, the newspaper reported that
[a]fter Robert Geron Miller, 38, died following a brief stay at the Tarrant
County Jail in July 2019, Ranger C.H. McDonald learned that he had
tussled violently with his jailers. Mr. Miller sustained head injuries when
one threw him to the ground, and he complained of chest pain after
another guard blasted him with pepper spray. He was dragged facedown
to a cell where another jailer saw him splayed out on the floor; splashing
toilet water on his face. Twelve minutes later, the Ranger noted, Mr.
Miller stopped breathing.
Michael LaForgia & Jennifer Valentino-DeVries, They Investigate Police Killings. Their
Record Is Wanting., N.Y. Times, Sept. 25, 2021,
https://www.nytimes.com/2021/09/25/us/police-shootings-killings.html.
9
Defendant Nicholas Bernal did not file or join a motion to dismiss. Appellees aver
that Jenkins’s claims against Bernal “were apparently dropped from the case,” as he was
never served with process. In her reply brief, Jenkins does not mention Bernal or address
Appellees’ assertion that her claims against Bernal have been abandoned.
6
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No. 24-10724
circumvent their assertions of qualified immunity. In July 2024, the district
court ruled that Jenkins’s claims were barred by Texas’s two-year statute of
limitations and dismissed her claims with prejudice on that ground alone.
The district court “conclude[d] that—at the latest—[Jenkins’s] cause of
action accrued ‘several days’ after Mr. Miller’s death on August 1, 2019,”
because Jenkins had knowledge that her husband died in the custody of the
Tarrant County Jail, which triggered her duty to investigate any possible
claims. The district court also found that, in any event, Jenkins’s claims had
accrued by July 30, 2021, the day she filed her first complaint alleging
excessive force and wrongful death claims.
Concluding that Jenkins’s claims were barred by the statute of
limitations, the district court rejected her alternative contention that
equitable tolling should work to save her claims. Most relevant here, the
district court determined that equitable tolling was unavailable for two
reasons. First, the court found that fraudulent concealment did not toll the
statute of limitations because Jenkins did not allege that any of the ten named
defendants fraudulently concealed any information from her. Thus, the
court ruled that none of those defendants were equitably estopped from
interposing the statute of limitations as a defense. Second, the district court
found that equitable tolling was inappropriate in this case because Jenkins
failed to exercise diligence in investigating and pursuing her claims.
Accordingly, the district court dismissed Jenkins’s claims with prejudice. 10
Jenkins now appeals.
_____________________
10
The district court did not decide the qualified immunity question. Given our
agreement that Jenkins’s claims are time barred, we likewise decline to address the
defendants’ assertion of qualified immunity. See C.S. v. Whole Foods, Inc., 65 F.4th 260,
265 n.7 (5th Cir. 2023); Arnold v. Williams, 979 F.3d 262, 269 (5th Cir. 2020).
7
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No. 24-10724
II.
“We review a district court’s dismissal under Rule 12(b)(6) de novo.”
Petersen, 57 F.4th at 231. “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (quotation marks and
citations omitted). A complaint is “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)). “It is ‘clearly proper in deciding a 12(b)(6) motion to take
judicial notice of matters of public record.’” U.S. ex rel. Long v. GSDMIdea
City, L.L.C., 798 F.3d 265, 274 n.8 (5th Cir. 2015) (quoting Norris v. Hearst
Tr., 500 F.3d 454, 461 n.9 (5th Cir. 2007)).
We review de novo a district court’s denial of equitable tolling as a
matter of law. F.D.I.C. v. Dawson, 4 F.3d 1303, 1308 (5th Cir. 1993). Where
a denial of equitable tolling “stems from the district court’s weighing of the
equities,” we review that decision “for abuse of discretion.” Rx.com v. Medco
Health Sols., Inc., 322 F. App’x 394, 398 (5th Cir. 2009) (citations omitted);
see also Teemac v. Henderson, 298 F.3d 452, 456 (5th Cir. 2002).
III.
Jenkins contends that (A) her claims against these defendants did not
accrue until November 30, 2021, when she first read a September 2021 New
York Times article that reported details about Miller’s death, and (B) even if
her claims accrued more than two years before she filed this action, Texas’s
8
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No. 24-10724
equitable tolling principles work to save her claims from the time bar. We
disagree on both points.
A.
“The statute of limitations for a suit brought under § 1983 is
determined by the general statute of limitations governing personal injuries
in the forum state.” Winfrey v. Rogers, 901 F.3d 483, 492 (5th Cir. 2018)
(quotation marks and citation omitted). In Texas, a two-year statute of
limitations governs personal injury claims. See Tex. Civ. Prac. & Rem.
Code Ann. § 16.003(b). Thus, Jenkins had to file suit within two years
from the date her claims accrued. “[T]he time at which a § 1983 claim
accrues ‘is a question of federal law,’ ‘conforming in general to common-law
tort principles.’” McDonough v. Smith, 588 U.S. 109, 115 (2019) (quoting
Wallace v. Kato, 549 U.S. 384, 388 (2007)).
“Under federal law, a cause of action accrues when the plaintiff knows
or has reason to know of the injury which is the basis of the action.” Gartrell
v. Gaylor, 981 F.2d 254, 257 (5th Cir. 1993). “As a result, the limitations
period begins ‘when the plaintiff is in possession of the critical facts that he
has been hurt and who has inflicted the injury.’” Smith v. Reg’l Transit Auth.,
827 F.3d 412, 421 (5th Cir. 2016) (quoting Gartrell, 981 F.2d at 257). More
precisely, it begins the moment “the plaintiff is or should be aware of the
causal connection between his injury and the acts of the defendant.” Stewart
v. Parish of Jefferson, 951 F.2d 681, 684 (5th Cir. 1992). She need not have
actual knowledge of every fact necessary to file suit, and she need not know
that she has a legal claim. Piotrowksi v. City of Houston, 51 F.3d 512, 516 (5th
Cir. 1995) (Piotrowski I); King-White v. Humble Indep. Sch. Dist., 803 F.3d 754,
762 (5th Cir. 2015) (quoting Piotrowski v. City of Houston, 237 F.3d 567, 576
(5th Cir. 2001) (Piotrowski II)). Instead, “she need know only the facts that
would ultimately support a claim,” Piotrowski II, 237 F.3d at 576, or be aware
9
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No. 24-10724
of “circumstances [that] would lead a reasonable person to investigate
further,” Piotrowski I, 51 F.3d at 516. 11
“[S]everal days” after Miller’s death on August 1, 2019, Jenkins
learned that her husband died in custody at the Tarrant County Jail. At that
moment, she knew the injury she had suffered—her husband’s death—and
the circumstances—Miller died while in custody—that would have led a
reasonable person to investigate the details of Miller’s death. See Smith, 827
F.3d at 421. That is, Jenkins was aware, or should have been aware, of a
possible causal connection between her injury and the acts of the defendants,
employees of the Tarrant County Jail. See Stewart, 951 F.2d at 684. Thus,
her claims accrued in August 2019, and the limitations period commenced at
that time. Because Jenkins failed to assert her claims against these individual
defendants within two years, her claims against them are barred by the statute
of limitations.
_____________________
11
The dissent reads our caselaw to require a plaintiff to know the identity of each
defendant before a cause of action may accrue against that defendant. Post at 23–24, 30; see
also Stewart v. Parish of Jefferson, 951 F.2d 681, 684 (5th Cir. 1992) (“The statute of
limitations period commences once the plaintiff acquires possession of two critical facts:
(1) an injury has occurred; and (2) the identity of the person who inflicted the injury.”).
But our cases do not require actual knowledge of the causal connection between an injury
and the acts of the defendants; at base, a plaintiff’s claims accrue when she “should be
aware of the causal connection between [her] injury and the acts of the defendant.”
Stewart, 951 F.2d at 684; see also Piotrowski I, 51 F.3d at 516 (citing Harrison v. United States,
708 F.2d 1023, 1027 (5th Cir. 1983); Jensen v. Snellings, 841 F.2d 600, 606 (5th Cir. 1988)).
Jenkins learned in August 2019 that her husband died in Tarrant County’s custody, and
she alleged in July 2021 that “members of the Tarrant County Sheriff’s Office as agents of
[Tarrant County]” caused her husband’s “wrongful death,” used “excessive force”
against him, and intentionally inflicted “emotional distress” upon him. Thus, at least two
years before she filed this lawsuit in November 2023, she had “notice of facts which, in the
exercise of due diligence, would have led to actual knowledge” of every proper defendant’s
identity. Jensen, 841 F.2d at 606.
10
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No. 24-10724
Jenkins counters that her claims did not accrue until November 30,
2021, when she first read the September 2021 New York Times article that
reported that Miller died from jailers’ use of excessive force. 12 But that
contention is belied by the fact that Jenkins filed a complaint four months
prior, on July 30, 2021, alleging claims for “excessive force” and “wrongful
death” and, for support, that “law enforcement officials . . . committed
unlawful acts against Mr. Miller” that caused his death. To assert those
claims and lodge those factual allegations, Jenkins must have formed some
belief that her claims were meritorious and her allegations true—and that
individuals employed by Tarrant County were the culpable “law
enforcement officials.” See Fed. R. Civ. P. 11(b). Her first complaint was
also intentionally filed just before the two-year limitation period expired.
It is of no moment that Jenkins may not have known the identity of the
individuals responsible at the time she filed her complaint, for she knew that
Miller wrongfully died at the hands of law enforcement officials—she
expressly pled that in her July 2021 complaint. Thus, when Jenkins’s claims
accrued as to Tarrant County, those claims also accrued as to the individual
defendants, whether she knew their identity or not. See Balle v. Nueces Cnty.,
Tex., 952 F.3d 552, 556–58 (5th Cir. 2017) (discussing Jacobsen v. Osborne,
133 F.3d 315, 319 (5th Cir. 1998)). 13
_____________________
12
Jenkins fails to provide any support for why her claims would not have already
accrued by November 30, 2021, even accepting that she belatedly discovered the New York
Times article that day. It was published two months before she first read it and would have
been easily located via a simple internet search of her husband’s name. Her account also
lacks plausibility because, despite having read the article in November 2021, Jenkins never
sought to amend the complaint in her first lawsuit—which was not dismissed until July
2022—to add the facts detailed in the article. Jenkins filed her first and only amended
complaint on October 22, 2021, about one month after the article’s publication.
13
The dissent faults our citation to Balle because that case concerned relation back
under Federal Rule of Civil Procedure 15(c). Post, at 24–25. But with great respect, the
11
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No. 24-10724
Jenkins’s claims accrued in August 2019. So the claims she asserted
in her November 30, 2023 complaint are barred by the applicable two-year
statute of limitations.
B.
Jenkins maintains that Texas’s equitable tolling principles work to
save her claims from the statute of limitations. Specifically, she contends that
Texas’s fraudulent concealment doctrine tolled the statute of limitations due
to Tarrant County’s and TDPS’s allegedly intentional withholding of
information.
Jenkins is correct that Texas’s equitable tolling principles control
here. Indeed, “when state statutes of limitation are borrowed, state tolling
principles are to be the ‘primary guide’ of the federal court.” Dawson, 4 F.3d
at 1309 (quoting Johnson v. Ry. Express Agency, 421 U.S. 454 (1975)).
Specifically, “[b]ecause the Texas statute of limitations is borrowed in § 1983
cases, Texas’[s] equitable tolling principles also control.” Rotella v. Pederson,
144 F.3d 892, 897 (5th Cir. 1998) (citing Bd. of Regents of Univ. of N.Y. v.
_____________________
dissent’s analysis of Balle is misdirected. For starters, Balle did not “allow[] for tolling,”
id.; rather, Balle distinguishes another, unpublished case that did, Green v. Doe, 260 F.
App’x 717, 719 (5th Cir. 2007) (per curiam). To the contrary, in Balle, the plaintiff did not
know at the time he filed suit—one day shy of the limitations period—the identity of two
“medical professionals purportedly responsible for his care while at the jail,” and instead
named as defendants twenty John and Jane Does. Balle, 952 F.3d at 556. Through
discovery, the plaintiff uncovered the medical professionals’ identities and sought to join
them as parties. Our court held that their joinder would not relate back under Rule 15, such
that the plaintiff’s claims against them were barred by the statute of limitations. Id. at 557–
58. And because the plaintiff’s “inability to determine the identities of the Jane Does
before the limitations period had run was attributable to his own decision to file his suit so
close to the end of the limitations period,” we declined to employ equitable tolling to save
the plaintiff’s claims. Id. at 558. At the very least, Balle supports that statutes of limitations
concern causes of action, not individual defendants whose identities the plaintiff should
have known; otherwise, Balle’s cause of action against the medical professionals would
have been viable.
12
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No. 24-10724
Tomanio, 446 U.S. 478, 485 (1980)). 14 More specifically, the species of
tolling at issue here is Texas’s fraudulent concealment doctrine, which “is a
fact-specific equitable doctrine that tolls limitations until the fraud is
discovered or could have been discovered with reasonable diligence.” Valdez
v. Hollenbeck, 465 S.W.3d 217, 229 (Tex. 2015). Jenkins contends that the
district court erred in its application of this doctrine in her case. We disagree.
In Texas, “fraudulent concealment . . . resembles equitable
estoppel.” Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 736 (Tex.
2001). In that sense, “[f]raudulent concealment tolls limitations ‘because a
person cannot be permitted to avoid liability for his actions by deceitfully
concealing wrongdoing until limitations has run.’” Shell Oil Co. v. Ross, 356
S.W.3d 924, 927 (Tex. 2011) (quoting S.V. v. R.V., 933 S.W.2d 1, 6 (Tex.
1996)). Thus, “[a] party asserting fraudulent concealment must establish an
underlying wrong, and that ‘the defendant actually knew the plaintiff was in
fact wronged, and concealed that fact to deceive the plaintiff.’” BP Am. Prod.
Co. v. Marshall, 342 S.W.3d 59, 67 (Tex. 2011) (emphasis added) (quoting
Earle v. Ratliff, 998 S.W.2d 882, 888 (Tex. 1999)). Still, “[t]he estoppel
effect of fraudulent concealment ends when a party learns of facts,
conditions, or circumstances which would cause a reasonably prudent person
_____________________
14
The dissent invites us to sweep Texas’s equitable tolling principles up into
federal accrual rules, blurring the distinction between claim accrual and equitable tolling
rules and suggesting that the resolution of this appeal rests simply upon how the inquiry is
framed. Post, at 30. We respectfully decline the dissent’s invitation and disagree that the
question is merely one of “fram[ing].” Our precedent recognizes a distinction between
accrual rules and equitable tolling principles, counseling that we employ federal law to
determine the former and state law for the latter. Indeed, whereas accrual is an objective
rule that inquires whether a reasonable plaintiff would or should have known that she
suffered a legally actionable injury, see Piotrowski I, 51 F.3d at 516, a defendant may
separately be equitably estopped from interposing the statute of limitations to defeat an
accrued claim due to the defendant’s conduct, i.e., fraudulent concealment. See, e.g.,
Wagner & Brown, Ltd., 58 S.W.3d at 736.
13
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No. 24-10724
to make inquiry, which, if pursued, would lead to discovery of the concealed
cause of action.” Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620, 623 (Tex.
2011) (quoting Borderlon v. Peck, 661 S.W.2d 907, 909 (Tex. 1983)).
The district court correctly applied Texas law in rejecting Jenkins’s
fraudulent concealment argument. Jenkins alleges only that Tarrant County
and TDPS, neither of which are named defendants in this action,
intentionally concealed information from her. She does not allege that any of
the named defendants fraudulently concealed any information from her.
Therefore, the district court did not err in concluding that these defendants
could not be equitably estopped from asserting the statute of limitations as a
defense. Mowbray v. Avery, 76 S.W.3d 663, 690–91 (Tex. Ct. App.—Corpus
Christi–Edinburg 2002, pet. denied); see also Marshall, 342 S.W.3d at 67. To
the extent Jenkins’s knowledge of these individual defendants’ identities
impacts the statute of limitations analysis—it does not, see Balle, 952 F.3d at
556–58—Jenkins failed to exercise due diligence to discover the identities of
these defendants prior to the expiration of the limitations period. And
because she learned, at least before July 30, 2021, “of facts, conditions, or
circumstances which would [have] cause[d] a reasonably prudent person to
make inquiry, which, if pursued, would [have led] to discovery of the
concealed cause of action,” any tolling would have ended by that date. See
Lehmann, 359 S.W.3d at 623. For all these reasons, Texas’s fraudulent
concealment doctrine does not defeat application of the statute of limitations
here.
The district court also found more generally that equitable tolling was
inappropriate given Jenkins’s failure to exercise diligence in investigating and
bringing her claims. After balancing the equities, the district court dismissed
Jenkins’s claims for that independent reason. We review such a decision for
abuse of discretion. Rx.com, 322 F. App’x at 398.
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No. 24-10724
“Traditional equitable principles preclude a court from invoking
equitable tolling, . . . when the party seeking relief has an adequate legal
remedy or statutory remedy to avoid the consequences of the statute of
limitations.” Balle, 952 F.3d at 558 (quoting Lambert v. United States, 44 F.3d
296, 298 (5th Cir. 1995)). Here, Jenkins had adequate legal remedies to avoid
the running of the statute of limitations. Among other possible avenues, she
could have filed suit against Tarrant County, and these individual
defendants, well earlier than she did—she knew that her husband had died in
custody and should have begun asking questions about his death long before
she filed her initial complaint against Tarrant County in July 2021. She could
have propounded and sought to compel discovery from Tarrant County in
her initial suit. She could have deposed a Rule 30(b)(6) representative of
Tarrant County soon after filing that lawsuit, asking for, inter alia, the names
of all individuals involved, and then joined those individuals as parties. But
she failed to take advantage of those avenues. As a result, she fails to show
the district court abused its discretion in affording her claims the benefit of
equitable tolling.
IV.
Jenkins’s claims accrued in August 2019. Therefore, her November
20, 2023 complaint falls beyond Texas’s two-year limitations period. Her
claims are thus time barred. Jenkins is not entitled to equitable tolling as to
the defendants named in this case because she does not allege that any of
them fraudulently concealed information from her. And she failed to exercise
diligence in investigating her claims or taking advantage of legal remedies
available to her to avoid the statute of limitations. For those reasons, the
district court did not err by dismissing Jenkins’s complaint with prejudice.
AFFIRMED.
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No. 24-10724
James C. Ho, Circuit Judge, concurring:
I agree with the majority, but write separately to address the dissent’s
concerns. Enforcing rules like statutes of limitations can seem deeply unjust
at times. But even the most minor violations of limitations have resulted in
forfeited claims—regardless of merits. The Supreme Court once “refused
to accept a petition for certiorari submitted by Ryan Heath Dickson because
it had been filed one day late,” so he was “executed on April 26, 2007,
without any Member of [the] Court having even seen his petition for
certiorari.” United States v. Davis, 137 F.4th 349, 351 (5th Cir. 2025)
(quoting Bowles v. Russell, 551 U.S. 205, 212 n.4 (2007)). Similarly, the
Supreme Court refused to accept a petition for certiorari submitted by
attorneys in a multi-million dollar anti-trust dispute because it was filed just
“a few days” late. Id. (citing Northwest Airlines, Inc. v. Spirit Airlines, Inc.,
549 U.S. 805 (2006)).
This case features a more substantial breach of limitations. Shanelle
Jenkins had two years to investigate these claims and file suit. Yet our court
has already once concluded—unanimously—that Jenkins failed to exercise
due diligence. See Jenkins v. Tarrant Cnty. Sheriff’s Office, 2023 WL
5665774, at *2 (5th Cir. Sept. 1, 2023) (per curiam) (unpublished). And if
anything, the record here shows that she was even less diligent in this case.
Whether a violation of the limitations period be minor or significant,
the rule of law requires us to enforce the rules all the same. If we don’t
require attorneys to be diligent, the entire system slows down. And there are
legitimate interests in repose that legislators are entitled to take into account.
See, e.g., Toussie v. United States, 397 U.S. 112, 114–15 (1970); ComputerAssoc.
Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996).
We honor those interests—and the rule of law—by enforcing the rules
consistently, even when the result seems unjust. I concur.
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No. 24-10724
Stephen A. Higginson, Circuit Judge, dissenting:
When we review dismissals under Rule 12, we take the plaintiff’s well-
pleaded allegations at face value. I therefore start by recounting what the
plaintiff in this case, Robert Miller’s widow Shanelle Jenkins, has alleged
about her repeatedly obstructed attempts to learn what happened to her
husband.
Jenkins tells us that her husband was in the custody of the Tarrant
County Jail when he died in August 2019. It is now apparent that he
suffocated to death because he was repeatedly pepper-sprayed while he was
in restraints, then abandoned on a jail cell floor as he struggled to breathe.
But that is not what was conveyed to Jenkins. Instead, the government
misstated the cause of death and disseminated a false autopsy report. Jenkins
diligently sought but could not obtain any additional information, so she filed
suit against the County. But the government continued to withhold the
records Jenkins needed, and in February 2022 her suit was dismissed.
Only once the suit was dismissed did the government start to turn over
its records. Disclosure began the very next day after the dismissal and
finished in April 2022. Those records finally allowed Jenkins to determine
the individuals involved in the events of her husband’s death. Jenkins has
now sought in this second suit, filed November 2023, to bring those
individuals to account.
The majority denies her claims by determining that Jenkins should
have identified and sued the individual defendants by August 2021—which
is to say, before the government released any records at all. To reach that
counterintuitive conclusion, the majority sets aside the complaint’s well-
supported allegations of a coordinated effort to keep Jenkins (and the broader
public) in the dark. Instead, the majority draws a series of inferences against
Jenkins to determine, on its own, that she was duty-bound to suspect an
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official killing and cover-up at the instant she learned of her jailed husband’s
death, discounting her determined efforts in the face of government
stonewalling to learn what had happened to him. Anticipating the objection
that frustration of a suit ordinarily tolls limitations, the majority then
interprets Texas’s tolling rules to reward rather than redress the alleged
cover-up.
The limitations issue in this case presents questions of fact—when a
reasonable person would have investigated a death in jail, how such an
investigation would have proceeded, whether there was joint action to
conceal the claims that would invite equitable tolling. To address those
questions, Jenkins should have an adequate opportunity to develop the
record. Because the majority denies her that chance, I respectfully dissent.
I.
Robert Miller died in the custody of Tarrant County Jail officials on
August 1, 2019. Compl. ¶ 143. The operative complaint alleges that he was
pepper-sprayed indoors—multiple times, while he was in full-body metal
restraints—then left without medical treatment for his asthma while he
suffocated to death. Id. ¶¶ 37–53, 66, 68–92, 105–43.
But that is not what Tarrant County told Miller’s grieving widow
Shanelle Jenkins, the plaintiff in this case. In the aftermath of her husband’s
death, the County made no effort to inform Jenkins what had happened.
Instead, she learned about the death several days later from a newspaper
article that “did not indicate any wrongdoing.” Id. ¶ 145. The Tarrant
County medical examiner reported Miller’s cause of death as “natural.” Id.
¶ 165. The initial autopsy report was not submitted until June 2020, nearly a
year after Miller’s death, and was not provided to Jenkins “despite several
direct requests” for information. Id. ¶¶ 165, 171, 174. The autopsy report
attributed Miller’s death to “sickle cell crisis,” which later independent
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analysis showed to be medically impossible. Id. ¶¶ 165–71, 198–99, 209–20.
When Jenkins “diligently tried to gather information” so she could learn
more, Tarrant County and the agency responsible for investigating Miller’s
death, the Texas Department of Public Safety (DPS), blocked her efforts and
refused to disclose the records she needed. Id. ¶¶ 174, 195–96, 225–26.
Stonewalled in her repeated attempts to obtain information about the
persons responsible for her husband’s death, Jenkins brought suit against
several government entities within the timeframe the majority identifies as
the limitations period, id. ¶ 175, and sought in that first suit to obtain records
from Tarrant County and from DPS, id. ¶¶ 176–84. But precisely because
those records were missing, the district court determined that the complaint
failed for lack of factual support; instead of setting a schedule for discovery,
however, the court dismissed the case. Jenkins v. Tarrant Cnty. Sheriff’s Off.,
No. 21-CV-910, 2022 WL 426593, at *9–11, *14 (N.D. Tex. Feb. 11, 2022).
The day after the case was dismissed, the government began turning over
records. Compl. ¶¶ 187–88. Disclosure was not completed until April 13,
2022. Id. ¶ 191. Those records contradicted the government’s story that
Miller had died of natural causes. See id. ¶ 192. They led some observers, in
the words of a Tarrant County Commissioner, to conclude that there
“appear[ed] to be a coverup in the death of Robert Miller.” Id. ¶ 202
(emphasis omitted). Jenkins accordingly moved the district court to
reconsider the dismissal. But the district court, exercising its discretion
under Rule 60(b), denied the motion. This court first issued an opinion
affirming the dismissal that did not address the Rule 60(b) motion, and then
affirmed the denial of the motion in a revised opinion. See Jenkins v. Tarrant
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Cnty. Sheriff’s Off., No. 22-10244, 2023 WL 5665774, at *1–2 (5th Cir. Sept.
1, 2023) (per curiam). 1
Because Jenkins did not know the identities of the individual officers
who were involved in the events, her first suit had not made them defendants.
Compl. ¶¶ 185, 188–89. With the newly disclosed information, however, she
was able to file this second suit against the individual officers in November
2023. Id. This time, the district court applied Texas’s two-year statute of
limitations and dismissed because, apparently, Jenkins’s diligent efforts to
acquire support for her claims had rendered those claims untimely.
II.
The majority opinion now sustains that patently unfair result. The
majority charges that the limitations period started to run in August 2019 at
the moment Jenkins learned that her husband had died, before she knew any
of the individual defendants’ identities. The majority then determines as a
matter of law that Jenkins, who repeatedly attempted to contact DPS and
then sought records using judicial process, did not exert reasonable efforts to
investigate her claims within that period.
That is legal error that is particularly unjustified on these facts. Our
case law makes clear that the claims accrued only once Jenkins had reason to
know the identities of those involved in the events of her husband’s death,
which, given the government’s stonewalling, could not have occurred until
_____________________
1
Because the suit involved government defendants, the decision did not address
the question of when Jenkins could have sued the individual officers party to this case. It
is worth noting that one basis for the decision was “the ease of accessing” the records
because they were “available under the Texas Public Information Act.” Jenkins, 2023 WL
5665774, at *2. But the majority opinion now points out that under Texas Government
Code § 552.103, neither Tarrant County nor DPS was “required to respond” to Jenkins’s
requests after all. Ante, at 3 n.3.
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at least 2022, when Jenkins finally received access to the records she had been
seeking. And it was the government’s doing, not her own, that deprived
Jenkins of access to the records up to that point.
A.
To determine that Jenkins’s claims are untimely, the majority starts
from the premise that the claims accrued the moment Jenkins learned that
her husband had died. “At that moment, she knew the injury she had
suffered—her husband’s death—and the circumstances—Miller died while
in custody—that would have led a reasonable person to investigate.” Ante,
at 10. Accordingly, the majority reasons, the limitations period started to run
at that point.
I am skeptical of that conclusion, and, regardless, I disagree that we
can reach it categorically without factual inquiry. The statute of limitations
is an “affirmative defense” that puts the burden on the defendant “to
establish it by proof.” Harrison v. Thompson, 447 F.2d 459, 460 (5th Cir.
1971) (per curiam). When a plaintiff “raise[s] questions of fact,” it is
“inappropriate to dispose of the case by dismissal.” Id.
The majority’s accrual analysis amounts to faulting Jenkins for not
jumping, at the moment she was informed of her husband’s death in
government custody, to what would have been a conclusion unsupported by
any evidence at all that he was killed by the state. But whether her reaction
was reasonable depends on its factual context. See Azalea Meats, Inc. v.
Muscat, 386 F.2d 5, 10 (5th Cir. 1967) (“Inevitably the factual issue of due
diligence involves, to some extent at least, the state of mind of the person
whose conduct is to be measured against this test and it is simply not feasible
to resolve such an issue on motion for summary judgment.”). A duty to
investigate suspicious circumstances is not a duty to assume that all
circumstances are suspicious. See Stewart v. Par. of Jefferson, 951 F.2d 681,
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684 (5th Cir. 1992) (“The prescriptive period will not commence prior to the
time the plaintiff is or should be aware of the causal connection between his
injury and the acts of the defendant.”). That is particularly true in this
setting because we typically presume that government officials discharge
their duties with regularity, not malice. See, e.g., Nat’l Archives & Recs.
Admin. v. Favish, 541 U.S. 157, 173–74 (2004).
The majority’s counterfactual approach is even more surprising
because the information available to Jenkins naturally led to the opposite
conclusion. As far as Jenkins knew or had reason to know, her husband died
from natural causes. Tarrant County still apparently maintains that Miller
died from sickle cell crisis. See Compl. ¶ 223. I do not see how we can fault
a citizen plaintiff for accepting a medical examiner’s official representations
(which, again, we ourselves would generally presume to be reliable 2) rather
than trying to gather information for a lawsuit that, based on the information
she had, would have been speculative and premature.
The majority’s way of viewing this issue abounds with hindsight. It is
now clear that there was more to learn about Miller’s death, so the majority
faults Jenkins for insufficient effort. But I see no specific information Jenkins
had in 2019, other than the majority opinion’s ipse dixit, that would have
_____________________
2
To this effect, however, it is worth noting that one in about 13 African-Americans
has sickle cell trait, most of them heterozygous for the trait and therefore unlikely to
develop sickle cell disease. A New York Times investigation found dozens of instances
where deaths in police custody were attributed to sickle cell trait. Michael LaForgia &
Jennifer Valentino-DeVries, How a Genetic Trait in Black People Can Give the Police Cover,
New York Times (May 15, 2021), https://www.nytimes.com/2021/05/15/us/african-
americans-sickle-cell-police.html. “Several doctors and researchers who spoke with The
Times said they would be skeptical of in-custody deaths attributed to sickle cell trait, unless
the situation also involved other risk factors.” Id.; see also Lachelle D. Weeks et al., Sickle
Cell Trait Does Not Cause “Sickle Cell Crisis” Leading to Exertion-Related Death: A
Systematic Review, 145 Blood 1345, 1350 (2025).
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called for a probing investigation into her husband’s death while in
government custody and care. In any case, the reasonableness of her reaction
is an issue improper for the district court, or us, to resolve at this threshold
posture.
B.
Another factual question is particularly inconvenient for the majority:
when Jenkins could have learned the identity of the individual defendants.
The majority sidesteps the issue by positing that “when Jenkins’s claims
accrued as to Tarrant County, those claims also accrued as to the individual
defendants.” Ante, at 11.
That is wrong as a matter of law. The majority correctly states that
“the limitations period begins ‘when the plaintiff is in possession of the
“critical facts that he has been hurt and who has inflicted the injury.”’”
Smith v. Reg’l Transit Auth., 827 F.3d 412, 421 (5th Cir. 2016) (quoting
Gartrell v. Gaylor, 981 F.2d 254, 257 (5th Cir. 1993)). But obviously, when
Jenkins did not know the identities of the individual defendants, she did not
know “who ha[d] inflicted the injury” of her husband’s death. Thus, she
lacked “possession” of one of the “critical facts” necessary to support her
claims. Stewart, 951 F.2d at 684 (“The statute of limitations period
commences once the plaintiff acquires possession of two critical facts: (1) an
injury has occurred; and (2) the identity of the person who inflicted the injury.”
(emphasis added)); see also Lavellee v. Listi, 611 F.2d 1129, 1131 (5th Cir.
1980).
Piotrowski v. City of Houston (Piotrowski II), 237 F.3d 567 (5th Cir.
2001), is instructive. After Barbra Piotrowski left a troubled relationship, her
ex-boyfriend enlisted the Houston Police Department to harass her,
culminating in an attempt on her life. Id. at 572–74. Over a decade later,
Piotrowski learned from an officer’s deposition testimony in a libel suit that
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a police “code of silence,” among other things, meant that “the City itself,
as opposed to individual officers, had a policy of . . . keeping information from
Piotrowski,” making it potentially liable for her injuries. Id. at 577 & n.12.
We rejected the argument that Piotrowski “knew of the facts
underlying her claims” at the moment she was attacked “or should have
inquired into the actions of the police officers at that time.” Id. at 576.
Instead, we sustained the jury’s conclusion that the claims accrued at the
deposition because only then could Piotrowski have “suspect[ed] that the
City, as opposed to individual officers, had actively protected and/or
assisted” the person who arranged the murder contract. Id. at 577.
Piotrowski II shows not only that the mere fact of injury need not
trigger a duty to investigate, but also that accrual of claims against a
government entity cannot be equated with accrual of claims against
individual defendants. That forecloses the majority’s contention that claims
that “accrued as to Tarrant County” thereby “accrued as to the individual
defendants.” See ante, at 11.
The majority opinion cites Balle v. Nueces Cnty., 952 F.3d 552 (5th Cir.
2017), to support its assertion that “knowledge of . . . defendants’ identities”
does not “impact[] the statute of limitations analysis,” ante, at 14, but Balle
does not stand for that proposition. Balle instead explained that relation back
was unavailable under Rule 15(c)(1)(C) when John Doe defendants are
substituted by named parties because the rule targets “error, such as a
misnomer or misidentification.” 952 F.3d at 557 (quoting Jacobsen v.
Osborne, 133 F.3d 315, 320 (5th Cir. 1998)). We then allowed for tolling where
“‘the delay in determining the identity of “John Doe” [was] not attributable
to’ the plaintiff’s actions,” id. at 558 (quoting Green v. Doe, 260 F. App’x
717, 719 (5th Cir. 2007) (per curiam))—and did not evaluate accrual at all.
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To the extent it is relevant, Balle shows why the majority’s approach
cannot be correct. Balle teaches that, had Jenkins sued unnamed officers in
her first suit, she would not benefit from relation back were she to amend
those claims to run against named defendants. So it cannot be the case that,
even if her first complaint shows that Jenkins knew she had a cause of action
against somebody without knowing whom, she thereby had all the
information she needed to support claims against individual officers. 3
By taking a contrary approach, the majority opinion provides
government defendants with a recipe for evading § 1983 liability. If plaintiffs
can be required to file their claims before they know the identities of any
defendants, and limitations will run even as the plaintiff remains unable to
determine whom they must sue, then all the government needs to do to keep
officers from being held accountable is to cloister them from identification
while the limitations period runs. That is plainly inconsistent with § 1983’s
command that “[e]very person” who deprives another of civil rights under
color of state law “shall be liable to the party injured.”
C.
With the limitations period set as early as possible, the majority says
that Jenkins should have done more during that period to persuade the
government to hand over the records it refused to disclose. According to the
_____________________
3
Although the majority glosses over the point, I do not understand the majority to
treat the filing of a previous complaint, in and of itself, as establishing that any claims in the
complaint have accrued. That is demonstrated by the majority’s position that Jenkins
should have used the discovery process to “investigate her claims.” See ante, at 3. Indeed,
other courts have concluded that complaints supported by reasonable belief do not
necessarily speak to the question of when a plaintiff knew or should have known of the facts
supporting later claims. See Childs v. Haussecker, 974 S.W.2d 31, 43 (Tex. 1998) (describing
an earlier suit based on “a diligent plaintiff’s mere suspicion or subjective belief” as,
“standing alone, insufficient to establish accrual”).
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majority, “Jenkins did little . . . to investigate her claims until weeks after she
filed her complaint. Even then, rather than avail herself of the district court’s
subpoena power or propound discovery under the Federal Rules of Civil
Procedure, she relied solely upon public records requests . . . and informal
telephone calls.” Ante, at 3 (citation omitted).
Again, that analysis discounts the complaint’s allegations. Even
though “[a]ll that [Jenkins] was aware [of] was that her husband had died
while in the custody of Tarrant County,” she, pro se, as a grieving widow,
“sought to learn more information behind the cause of Mr. Miller’s death,”
“diligently tr[ying] to gather information from Tarrant County and [DPS].”
Compl. ¶¶ 173–74. Only after “several direct requests” for information were
stonewalled did Jenkins “acquire[] legal representation and sue[] Tarrant
County.” Id. ¶ 175. If it were Jenkins’s burden to rebut a limitations defense
in her complaint (which it is not), these statements would “set forth
sufficient information to outline the elements” of reasonable diligence, or at
least “permit inferences to be drawn that these elements exist.” Gen. Star
Indem. Co. v. Vesta Fire Ins. Corp., 173 F.3d 946, 950 (5th Cir. 1999).
Moreover, the existing record (even without discovery) confirms that
Jenkins conducted an investigation that was reasonable under the
circumstances. At a hearing in the first case on August 13, 2021, counsel for
Jenkins explained that he was retained after “[s]he had been frustrated in her
attempts to receive information from Tarrant County” and “frustrated by
[DPS], because they had not provided her any information about the status
of her husband’s case.” That account of stonewalling is corroborated both
by the government’s continuing refusal to turn over records once Jenkins
brought suit, and by the statement of a Tarrant County Commissioner
surmising a “coverup in the death of Robert Miller.”
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The majority’s insistence that Jenkins, faced with these obstacles,
should have deployed “the district court’s subpoena power” or sought
discovery is unpersuasive. 4 See ante, at 3. In her first suit, Jenkins did ask the
district court to “compel[] Defendants to make information available for
public inspection” under Texas Government Code § 552.321, a state-law
cause of action. The complaint repeatedly explained that “a reasonable
opportunity for further investigation or discovery” was necessary to
substantiate the allegations in light of DPS’s “refus[al] to provide any
documentation or records.” When Jenkins sought to stay the case to gather
additional information, the defendants described the motion as “nothing
more than a request to conduct discovery.” And the district court ultimately
“reject[ed] Plaintiff’s suggestion that she be permitted more discovery in
order to plead her best case.” It is hair-splitting to say that a diligent attempt
to investigate was not made because Jenkins focused her efforts on one
procedural vehicle, and not an equivalent one identified by the majority
opinion after the fact, to try to accomplish the same thing.
If anything, Jenkins took more assertive steps than seeking discovery
under the Federal Rules, as it is far from clear that the time was ripe to seek
discovery at all. In their response to the stay motion, with motions to dismiss
pending, the defendants argued that they should not have to “unlock the
_____________________
4
Requiring a plaintiff to file suit against a different adversary and then engage in
specific procedural maneuvers to try to draw out information is a formidable burden to
impose in the name of “reasonable diligence.” Yet such burdens can be found throughout
the majority opinion. To take another example, the majority contends that the New York
Times article about Miller’s death ran “two months before [Jenkins] first read it and would
have been easily located via a simple internet search of her husband’s name.” Ante, at 11
n.12. I see no reason to require the bereaved to scour the papers every day for news reports
about a loved one’s death while in the government’s custody and care. At the very least,
my disagreement with the majority on issues like these counsels in favor of further
development and fact-finding.
27
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doors of discovery” for Jenkins because the early phase of the case made
discovery “inappropriate.” The majority opinion offers no explanation of
how, facing this strenuous opposition and a pending motion to dismiss,
Jenkins is supposed to have unlocked those doors on her own. See Riley v.
Walgreen Co., 233 F.R.D. 496, 499 (S.D. Tex. 2005) (“Rule 26(d)’s
proscription sweeps broadly: not only may a party not ‘serve’ discovery, it
may not even ‘seek’ discovery from any source until after the Rule 26(f)
conference.”). 5 At any rate, nitpicking Jenkins’s litigation strategy this way
involves so much speculation that decision on these grounds is inappropriate
in this posture.
III.
Forced to explain how Jenkins could have brought her claims during a
period when the government refused to tell her what had happened to her
husband, the majority opinion says that “Texas’s equitable tolling principles
control,” and that equitable tolling is not available under Texas law. See ante,
at 12.
I disagree on both points. As I have explained, the government’s
stonewalling prevented Jenkins from learning critical facts she needed to
bring her claims. That kept her claims from accruing under federal
principles, regardless of state tolling rules. And in any event, the majority
opinion fails to address allegations of joint action that could make equitable
tolling proper under Texas law. 6
_____________________
5
I do not understand the majority to speculate that Jenkins should have unilaterally
moved for expedited discovery, but in any case it is unlikely that the district court, which
dismissed the suit, would have granted such a motion. See Warren v. Bank of Am., NA, No.
13-CV-1135, 2013 WL 12221859, at *1 & n.2 (N.D. Tex. Dec. 16, 2013) (Ramirez, J.).
6
The majority opinion also raises the issue of diligence in this context. Ante, at 14–
15. I find that analysis unpersuasive for the reasons explained in Section II.C.
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The majority’s approach also portends clouds on the horizon. If, as
the majority concludes, a state’s law can allow the state to run out limitations
in a § 1983 suit by concealing the identity of individual defendants, then
applying federal common law may be necessary to give effect to Congress’s
mandate in § 1983.
A.
As a starting point, I disagree that equitable tolling is the sole lens
through which we should view Jenkins’s allegations of concealment. A claim
generally does not accrue until “the plaintiff can file suit and obtain relief.”
Wallace v. Kato, 549 U.S. 384, 388 (2007) (quoting Bay Area Laundry & Dry
Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997));
see also Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 603 U.S. 799,
811 (2024) (“[W]e have ‘reject[ed]’ the possibility that a ‘limitations period
commences at a time when the [plaintiff] could not yet file suit’ as
‘inconsistent with basic limitations principles.’” (quoting Bay Area Laundry,
522 U.S. at 200)). That requires the plaintiff to have “possession of” the
“critical facts” to support a complaint. Stewart, 951 F.2d at 684. When the
facts are hidden from the plaintiff, the claim does not accrue. See King-White
v. Humble Indep. Sch. Dist., 803 F.3d 754, 763–64 (5th Cir. 2015) (“[T]o the
extent Plaintiffs are arguing that the limitations clock should not have run
until they discovered or should have discovered their injuries, they are
arguing for application of the federal accrual rule that we already apply.”). 7
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7
We have stated that “[w]hen a defendant controls the facts surrounding causation
such that a reasonable person could not obtain the information even with a diligent
investigation, a cause of action accrues, but the statute of limitations is tolled.” Piotrowski
v. City of Houston (Piotrowski I), 51 F.3d 512, 517 (5th Cir. 1995). However, the analysis
Piotrowski I cited for this proposition in United States v. Kubrick, 444 U.S. 111, 122 (1979),
concerned accrual; Piotrowski I may have meant that the statute of limitations is “tolled”
by the discovery rule. See Piotrowski I, 51 F.3d at 517 (“[W]e cannot say as a matter of law
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It may be, the majority says, that under Texas law concealment of a cause of
action can independently support equitable tolling, but that does not keep it
from being a federal accrual issue too. See Wallace, 549 U.S. at 388 (“[T]he
accrual date of a § 1983 cause of action is a question of federal law that is not
resolved by reference to state law.”).
One of the facts necessary to bring a suit is the defendant’s identity.
In a survival action under § 1983, the plaintiff may well require government
records to establish which officer bears responsibility for the events at issue.
Until the plaintiff obtains those records, she is not in “possession of” the
“critical fact[]” of “the identity of the person who inflicted the injury.”
Stewart, 951 F.2d at 684. Accordingly, when the reason that a plaintiff cannot
track down an individual defendant is that a government entity is concealing
the defendant’s identity, the claim has not yet accrued. That is a vital
conclusion of federal law that is not subject to displacement by the states.
B.
Nonetheless, the majority restricts its analysis of the concealment
issue to tolling, explaining that under Texas law equitable tolling is not
available to remedy concealment of information by a third party. Again, this
illustrates why the issue is better framed in terms of accrual, since the
nonsensical result is that a plaintiff is forced to bring a claim she lacks
information to support.
But in any event, the majority opinion is likely incorrect on the merits.
The majority cites Mowbray v. Avery, 76 S.W.3d 663 (Tex. Ct. App.—Corpus
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that the limitations period started in 1980.”). In any event, if Piotrowski I applies, “the
statute of limitations is tolled” anyway; alternatively, if, as the majority says, tolling is
unavailable because this case does not involve a “defendant” controlling the relevant facts
such that Piotrowski I does not apply, we may follow Kubrick and our other accrual cases.
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Christi-Edinburg 2002, pet. denied). Ante, at 14. There, the plaintiffs in a
first case sought to recover life insurance proceeds because the defendant had
been convicted of causing the death of the insured. 76 S.W.3d at 670. In a
second case, the former defendant filed a petition for bill of review and
alleged that her “conviction was procured by ‘the wrongful conduct of
officers of the court and their conspirators.’” Id. at 672, 684 n.30. The court
declined to impose equitable tolling based on these assertions of prosecutorial
misconduct. See id. at 690.
This case has a far more immediate connection between the concealed
information and the defendants’ liability, both as a matter of pleading and as
a matter of logic. The complaint expressly alleges that the relevant
information was concealed for the benefit of the individual defendants.
Compl. ¶¶ 9–16, 159, 171, 174, 202, 210, 215, 224, 226. 8 Indeed, as the
majority opinion points out, DPS likely refused to disclose the relevant
records to Jenkins because her first suit was pending. See ante, at 3 n.3.
Under Texas’s rules, that distinction makes a difference. Tolling can
be proper on the basis of a third party’s actions when those actions can be
imputed to the defendant. See Bonner v. McCreary, 35 S.W. 197, 199 (Tex.
Civ. App. 1895, writ ref’d). Doing so is especially sensible in contexts
involving partners, co-conspirators, or joint venturers who are presumed to
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8
The majority opinion describes these allegations as “bare-bones.” Ante, at 6. But
they are supported by the government’s disclosure of the relevant records starting the day
after dismissal of the first suit, the falsified autopsy report, news reporting that Tarrant
County “tried to withhold nearly every detail about what happened to Miller inside the
jail,” Tarrant County’s allegedly routine involvement of DPS to investigate deaths at the
Tarrant County Jail rather than having the independent investigation required by Texas
law, Tarrant County’s alleged pattern of obstructing similar open records requests, and a
statement by a Tarrant County Commissioner that he was “troubled by what appears to be
a coverup in the death of Robert Miller.” That is more than enough “context” to “raise[]
a suggestion of” coordination. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).
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act on each other’s behalf. See Glenn H. McCarthy, Inc. v. Knox, 186 S.W.2d
832, 838 (Tex. Civ. App.—Galveston 1945, writ ref’d). Jenkins has alleged
a joint effort among the relevant actors to cover up the events surrounding
Miller’s death. Those allegations are supported by statements from Tarrant
County officials. That could provide a reason to impute the actions of third
parties to the individual defendants in the tolling analysis. At the very least,
it calls for factual development as to the nature and extent of common action.
C.
Finally, if it can be assumed both that Texas law on equitable tolling
displaces federal accrual law and that it forecloses recourse for plaintiffs in
these circumstances, it may be necessary to consider the availability of tolling
under principles of federal common law.
“In enacting 42 U.S.C. § 1988 Congress determined that gaps in
federal civil rights acts should be filled by state law”—but only “as long as
that law is not inconsistent with federal law” and does not “defeat the goals
of the federal statute at issue.” Hardin v. Straub, 490 U.S. 536, 538–40
(1989) (footnote omitted) (citing Bd. of Regents of the Univ. of the State of N.Y.
v. Tomanio, 446 U.S. 478, 488–92 (1980)). Accordingly, “a state’s tolling
provisions cannot be inconsistent with the policies underlying § 1983.”
Rotella v. Pederson, 144 F.3d 892, 897 (5th Cir. 1998); accord Heck v.
Humphrey, 997 F.2d 355, 358 (7th Cir. 1993) (Posner, J.) (“[A] body of state
tolling law that lacks a provision for equitable tolling is inconsistent with the
provision of a complete federal remedy under section 1983 and therefore is
overridden by the federal doctrine.”), aff’d on other grounds, 512 U.S. 477
(1994).
It obviously “defeat[s] . . . § 1983’s chief goals of compensation and
deterrence,” Hardin, 490 U.S. at 539, when state entities can block suits
against individual officers by concealing their identities. The problem is not
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localized to this case. As long as information can be withheld or covered up
for the limitations period, Congress’s aims of compensation and deterrence
can be thwarted—not only for the term of the concealment, but permanently.
That is not what Congress intended. The Ku Klux Klan Act of 1871
responded to “crimes perpetrated by concert and agreement, by men in large
numbers acting with a common purpose.” Cong. Globe, 42d Cong., 1st Sess.
457 (1871) (statement of Rep. John Colburn). “[H]undreds of cases were
chronicled; and a singular feature connected with them was that the civil
authorities seemed utterly powerless to obtain convictions for any crimes,
however atrocious.” Id. at 459. Representative Colburn of Indiana stated:
Such occurrences show that there is a pre-concerted and
effective plan by which thousands of men are deprived of the
equal protection of the laws. The arresting power is fettered,
the witnesses are silenced, the courts are impotent, the laws are
annulled, the criminal goes free, the persecuted citizen looks in
vain for redress. This condition of affairs extends to counties
and States; it is, in many places, the rule, and not the exception.
What, then, can be done? The States cannot or do not act.
Some other power must be invoked. Where does it reside? . . .
That power resides in the General Government. . . . Without
such a superintending and overruling authority our
Government is chaos, is anarchy, is an unfinished ruin, fails
where it is most needed. . . .
Whenever, then, there is a denial of equal protection by the
State, the courts of justice of the nation stand with open doors,
ready to receive and hear with impartial attention the
complaints of those who are denied redress elsewhere. Here
may come the weak and poor and downtrodden, with assurance
that they shall be heard. Here may come the man smitten with
many stripes and ask for redress. Here may come the nation,
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in her majesty, and demand the trial and punishment of
offenders, when all, all other tribunals are closed.
Id. In that context, it is hard to believe that Congress would have
contemplated that a defendant might escape § 1983 liability by leveraging
collusion or acquiescence among officials to open up strategic opportunities
under a state’s common law of procedure.
This case can be resolved on the other grounds I have identified. But
when state tolling rules begin to swallow up claims that have properly accrued
under federal law, we must confront this problem.
IV.
The majority opinion affirms dismissal of dire and unresolved
allegations of a government killing and cover-up. In doing so, the majority
opinion disregards governing law and the guiding principles of § 1983.
Worse, it encourages government officials to run out statutes of limitations
by concealing information about lethal misconduct.
These missteps raise concerns in and of themselves, but they are
especially concerning in their broader context. Official defendants in suits
like these already are generally protected by qualified immunity. To that
daunting substantive gauntlet, the majority now adds Kafkaesque procedural
obstacles for ordinary Americans seeking to hold government officials
accountable for violations of constitutional rights.
I would reverse and remand to allow the issue of limitations to be
determined on a full, factual record. I respectfully dissent.
34