Opinion

Jenkins v. Tahmahkera

Court
Court of Appeals for the Fifth Circuit
Filed
Aug 19, 2025
Status
Published
Nature of suit
Civil Rights
Cited by
0 cases
Authority
More cited than 38.8%

“[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.

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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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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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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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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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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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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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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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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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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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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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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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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

23

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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.”

26

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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.

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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

_____________________

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

_____________________

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

_____________________

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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