Case: 21-20170 Document: 00516315743 Page: 1 Date Filed: 05/11/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 11, 2022
No. 21-20170 Lyle W. Cayce
Clerk
Hector Salas, Sr., individually and as representative of the Estate of
Hector Salas, Jr.; Andrea Silva, individually, and as next friend
H. S. and A. S.; Cynthia Montiel, as next friend E. S.,
Plaintiffs—Appellants,
versus
City of Galena Park,
Defendant—Appellee,
Consolidated with
_____________
No. 21-20333
_____________
Hector Salas, Sr., individually and as representative of the Estate of
Hector Salas, Jr.; Andrea Silva, Individually and A/N/F for
H.S., A.S.; Cynthia Montiel, A/N/F for E.S.,
Plaintiffs—Appellants,
versus
James Knox; Cynthia Jimenez,
Defendants—Appellees.
Case: 21-20170 Document: 00516315743 Page: 2 Date Filed: 05/11/2022
No. 21-20170
c/w No. 21-20333
Appeal from the United States District Court
for the Southern District of Texas
USDC Nos. 4:19-CV-4479 & 4:21-CV-892
Before Higginbotham, Dennis, and Graves, Circuit Judges.
Per Curiam:*
This consolidated appeal arises from two lawsuits seeking to hold the
City of Galena Park, Texas (the “City”) and several of its law enforcement
officers accountable for the death-in-custody of Hector Salas, Jr. Salas was
left alone and unmonitored in a cell at the Galena Park Jail for hours even
though jail officers knew that Salas had recently attempted to take his own
life and was still suicidal. While the officers ate pizza and watched Netflix
instead of walking their rounds as required by policy, Salas hanged himself
with strips of fabric torn from his mattress.
Representatives of Salas’s estate (the “Estate”) sued the City, and
later the police chief and several officers on duty the night of Salas’s death in
two different lawsuits (the “City Suit” and the “Officer Suit,” respectively).
After a series of procedural missteps by the Estate’s counsel, the district
court dismissed the City Suit for failing to plead a constitutional injury and
alternatively for failing to plead municipal liability. The court later dismissed
the separate Officer Suit as barred by Texas’s statute of limitations. In a post-
judgment motion in the City Suit, the Estate sought, among other forms of
relief, leave to amend its petition. The district court denied leave, applying
Rule 59(e)’s standard of manifest error of law or fact.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
2
Case: 21-20170 Document: 00516315743 Page: 3 Date Filed: 05/11/2022
No. 21-20170
c/w No. 21-20333
We AFFIRM the district court’s dismissal of the Officer Suit as
barred by the statute of limitations. However, we find that the district court
abused its discretion in the City Suit by denying the Estate’s post-judgment
motion seeking leave to amend its petition. We therefore REVERSE the
district court’s denial of post-judgment leave to amend and REMAND for
amendment and further proceedings in case number 4:19-CV-4479.
I. Facts and Procedural History
Early in the morning of November 28, 2018, Andrea Silva called the
police because her husband, Hector Salas Jr., had taken a handful of
medications in an attempt to commit suicide. When a Galena Park police
officer arrived, Salas begged the officer to shoot him and said that he wanted
to die. The officer took Salas to Ben Taub Hospital and requested that Salas
be held for forty-eight hours for psychological evaluation. For reasons that
are not clear from the record, Salas was released from the hospital later that
afternoon. The next day, Salas’s wife again called the Galena Park police
because Salas was still suicidal. This time, Salas was taken to the Galena Park
Jail.
Though the jail noted that Salas was suicidal at intake, Salas was
placed alone in a cell and left unmonitored for nearly five hours. During this
time, Salas tore strips of fabric from his mattress and fashioned a noose.
Twice he tried to hang himself but failed. On his third attempt, Salas
succeeded. The two officers on duty that night did not monitor the
surveillance video of Salas’s cell or make any hourly in-person checks as were
required. 1 Instead, they ordered pizza and watched Netflix until Salas’s wife
1
Though the Estate did not include any specific allegations to this effect, an
incident report submitted later in response to a district court management order states that,
had the officers performed their hourly rounds as required, they would have seen Salas
3
Case: 21-20170 Document: 00516315743 Page: 4 Date Filed: 05/11/2022
No. 21-20170
c/w No. 21-20333
called around midnight to check on her suicidal husband’s status. After the
call, the officers went to Salas’s cell and found his lifeless body.
A. The City Suit
Representatives of Salas’s estate first filed a lawsuit against the City
of Galena Park, a person named Rick Gonzalez who was alleged to be the
police chief, and five unnamed police officers in state court. The petition
alleged a variety of claims: that the City failed to train and supervise its
officers, that Chief Gonzalez also failed to train and supervise his officers,
and that the officers themselves failed to protect Salas from self-harm despite
their knowledge of the obvious risk. The petition also alleged state law
wrongful death and personal injury claims. The City removed the case to
federal court and filed a motion to dismiss for failure to state a claim. Before
the Estate responded to this motion to dismiss, the district court held a “pre-
trial conference.” After the conference, the court dismissed Gonzalez from
the suit because, as the Estate conceded, he had left the employ of Galena
Park five months before Salas’s suicide and was therefore not liable for
Salas’s injuries or death. The court also ordered the parties to exchange
certain discovery and ordered the Estate to depose “the fired deputy” before
it would “discuss whether she will be added as a party.” 2
The Estate sought an extension of time to respond to the pending
motion to dismiss, stating that it intended to amend the petition with the
tearing strips from his mattress and been able to intervene, “possibly preventing his
intentional asphyxiation to himself.”
2
The record does not contain a transcript of this conference, but the parties’ briefs
identify the deputy in question as Cynthia Jimenez, whom the Estate later attempted to add
to the case by amending its petition. However, motions for extension filed by the Estate
shortly after this conference suggest the deputy in question was Adrian Herrera. The
record is unfortunately inconclusive as to who, if anyone specifically, the district court
instructed the Estate to depose.
4
Case: 21-20170 Document: 00516315743 Page: 5 Date Filed: 05/11/2022
No. 21-20170
c/w No. 21-20333
leave of the court, but first would need time to depose “Officer Herrera.”
The court granted the motion, giving the Estate until February 23, 2020 to
respond to the City’s motion to dismiss. On February 23, 2020, the Estate
filed another motion for an extension of time, stating again that it intended to
amend its petition, 3 but would need time to depose “Officers Herrera and
Jimenez.” The next day, February 24, 2020, the Estate filed a First Amended
Complaint into the district court’s docket without seeking leave, naming
Rodney Chersky, purportedly the correct police chief, and officer Cynthia
Jimenez as defendants. That same day the court granted the Estate’s second
motion for an extension, setting a deadline of March 6, 2020 to respond to
the pending motion to dismiss. This order did not reference the amended
complaint.
On March 6, 2020, the Estate filed its opposition to the motion to
dismiss. On March 9, 2020, the City filed a motion to strike the Estate’s First
Amended Complaint for failing to seek leave of the court and for failing to
show good cause why it never deposed the missing deputy as the court’s
management order required. The court granted the City’s motion to strike,
stating again that the Estate may seek leave to amend after deposing Cynthia
Jimenez. The district court then ordered a status conference to discuss the
motion to dismiss, but counsel for the Estate failed to attend. Following this,
the court dismissed the original unnamed officer defendants, “Does 1–5,” as
improvidently joined. At this point, only the City of Galena Park remained as
3
Because this case was removed from Texas state court, the Estate’s initial
operative pleading was styled as a petition. When it attempted to amend, the new pleading
was styled as a complaint, specifically the First Amended Complaint. Throughout this
opinion, we refer to the Estate’s original state court pleadings as petitions and any
subsequent pleading filed in federal court as complaints, following the titles that appear on
them in the record.
5
Case: 21-20170 Document: 00516315743 Page: 6 Date Filed: 05/11/2022
No. 21-20170
c/w No. 21-20333
a defendant. It does not appear that the Estate’s counsel ever deposed
Jimenez, Herrera, or any other deputy.
There was no more activity in the case until December 30, 2020, when
the district court granted the City’s motion to dismiss for failure to state a
claim. According to the court’s opinion, the Estate failed to state a claim
because “no constitutional right to proper implementation of adequate
suicide prevention exists.” Alternatively, the court held, the Estate’s claim
failed because it failed to plead facts showing the City or a City policymaker
acted with deliberate indifference. As to the state law claims, the district
court accepted them as “waived” because the Estate argued in its briefing
that it was “only pursuing” the constitutional claims in its petition. 4 A final
judgment dismissing the case with prejudice was entered.
The Estate filed a Rule 59(e) motion to alter or amend the judgment,
challenging the court’s dismissal of the case for failure to state a claim. The
motion also challenged the district court’s earlier decision to strike its First
Amended Complaint, arguing that it could amend its operative pleading
without leave of the court pursuant to Rule 15(a)(1) because the court’s
extensions of time to respond to the motion to dismiss automatically
extended the time to amend as of course. In the alternative, the Estate
4
In its briefing before this court, the Estate makes the same assertion, appearing to
have copied and pasted from its district court briefing. Though the briefing is not entirely
coherent, the Estate does assert that “[i]t is clear from appellants” [sic] allegations that
they are not pursuing claims that fit under” Texas’s waiver of sovereign immunity for state
law torts. “Instead, Appellants assert civil rights claims for The City of Galena’s [sic]
deliberate indifference to Salas’ serious medical needs.” Whether or not this may be
correctly read as waiver of the Estate’s state law tort claims, the argument on appeal does
not challenge the district court’s ruling on those claims. Therefore, whatever state law
claims the Estate could have appealed in this court are abandoned. Stem v. Gomez, 813 F.3d
205, 213 (5th Cir. 2016) (“If a party fails to mention a district court’s disposition of certain
claims in its briefing, such claims ‘are considered abandoned.’”) (quoting Huckabay v.
Moore, 142 F.3d 233, 238 n.2 (5th Cir. 1998)).
6
Case: 21-20170 Document: 00516315743 Page: 7 Date Filed: 05/11/2022
No. 21-20170
c/w No. 21-20333
requested leave to amend. The district court denied this motion. It reaffirmed
its conclusion that the original petition failed to state a claim, rejected the
Estate’s argument that it could amend as of course since the First Amended
Complaint was filed long past the twenty-one-day window provided by Rule
15(a)(1), and denied the request for leave to amend. In each instance, the
district court applied a standard of “manifest error of law” and “manifest
injustice” to the Estate’s arguments in the motion. The Estate appealed.
B. The Officer Suit
On December 1, 2020, while the district court was deciding the City’s
motion to dismiss in the City Suit, the Estate filed another, very similar
lawsuit in state court. This suit named as defendants Chief James Knox, and
Officers Adrian Herrera and Cynthia Jimenez, each in their individual
capacities. As in the earlier lawsuit, the petition alleged that Galena Park
officials knew of Salas’s suicidal state of mind, yet left him alone and
unmonitored in a jail cell where he was able to hang himself using strips of
mattress fabric. Many of the factual allegations in this petition appear to have
been copied from the petition in the earlier suit. But whereas the earlier suit
sought to impose municipal liability on the City of Galena Park, this suit only
claimed that Officers Jimenez and Herrera failed to protect Salas and that
Chief Knox had failed to properly train or supervise them.
The defendants removed this case to federal court, where it was
related to the Estate’s earlier lawsuit against Galena Park and assigned to the
same judge presiding over that case. The defendants moved to dismiss the
case, asserting that it was barred by Texas’s statute of limitations, and in the
alternative that it failed to state a claim. The district court agreed, stating that
the statute of limitations for § 1983 cases filed in Texas is two years, and that
the Estate’s counsel filed this lawsuit one day late. In the alternative, the
court held that the complaint failed to plead facts establishing deliberate
7
Case: 21-20170 Document: 00516315743 Page: 8 Date Filed: 05/11/2022
No. 21-20170
c/w No. 21-20333
indifference, and that, in any case, there is no constitutional right to the
proper implementation of adequate suicide prevention protocols. The Estate
appealed this dismissal and consolidated the appeals into the matter
presently before this court.
II. Standards of Review
We review a motion to dismiss de novo, accepting all well-pleaded facts
as true and interpreting them in the light most favorable to the plaintiff. Allen
v. Walmart Stores, L.L.C., 907 F.3d 170, 177 (5th Cir. 2018). To survive a
motion to dismiss, the facts in the complaint must plausibly show that the
defendant is liable and the plaintiff entitled to relief. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id.
A Rule 59(e) motion for relief from a judgment is reviewed for abuse
of discretion, though the level of a district court’s discretion varies with the
kind of relief sought in the motion. Generally, a Rule 59(e) motion “‘must
clearly establish either a manifest error of law or fact or must present newly
discovered evidence’ and ‘cannot be used to raise arguments which could,
and should, have been made before the judgment issued.’” Rosenzweig v.
Azurix Corp., 332 F.3d 854, 863 (5th Cir. 2003) (quoting Simon v. United
States, 891 F.2d 1154, 1159 (5th Cir. 1990)). However, when the motion seeks
to reopen a judgment on the pleadings in order to amend the pleadings “the
disposition of the plaintiff’s motion to vacate under [R]ule 59(e) should be
governed by the same considerations controlling the exercise of discretion
under [R]ule 15(a).” Id. at 864 (quoting Dussouy v. Gulf Coast Inv. Corp., 660
F.2d 594, 597 n.1 (5th Cir. 1981)). Thus, “we review the district court’s
denial of plaintiff[’s] 59(e) motion for abuse of discretion, in light of the
limited discretion of Rule 15(a).” Id.
8
Case: 21-20170 Document: 00516315743 Page: 9 Date Filed: 05/11/2022
No. 21-20170
c/w No. 21-20333
III. Discussion
A. The City Suit
42 U.S.C. § 1983 creates a cause of action for deprivations of
constitutional and federal statutory rights by persons acting under of color of
state law. A municipality is a “person” under § 1983, but, like any § 1983
defendant, it may only be held liable for its own actions—that is, official
policies or customs, or the actions of its employees taken pursuant to these.
Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978).
This official policy or custom must be the “moving force” of the plaintiff’s
injury, and like all § 1983 claims, the injury must be a violation of a right
secured by the Constitution or federal law. City of Canton, Ohio v. Harris, 489
U.S. 378, 389 (1989); see also Collins v. City of Harker Heights, Tex., 503 U.S.
115, 121–22 (1992) (emphasizing the “separate character” of these inquiries).
When the municipal policy or custom alleged is a failure to train or supervise,
deliberate indifference must be shown. City of Canton, 489 U.S. at 388;
Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 850 (5th Cir. 2009).
Given this welter of requirements, pleading Monell liability is
notoriously difficult. And “[e]ven within the difficult world of Monell
liability, failure-to-train claims are especially difficult to establish.” Anderson
v. Marshall Cty., Miss., 637 F. App’x 127, 134 (5th Cir. 2016) (unpublished)
(citing Connick v. Thompson, 563 U.S. 51, 61 (2011)). The district court held
that the Estate failed to state a claim against the City, first because it failed to
allege a violation of a recognized constitutional right, and second because it
did not plead the elements required by Monell and its progeny. The court did
not address the Estate’s allegations against the unnamed officers for their
deliberate indifference to Salas’s rights since they had been dismissed as
defendants. As discussed below, we agree with the district court that the
Estate’s original petition failed to adequately plead Monell liability. However,
9
Case: 21-20170 Document: 00516315743 Page: 10 Date Filed: 05/11/2022
No. 21-20170
c/w No. 21-20333
both the original petition and the amended complaint describe a violation of
a constitutional right—contrary to the district court’s ruling—and the
proposed amended complaint does succeed in stating a claim against the
individual officers on duty that night. Because this amended complaint states
a claim, and the record does not disclose substantial reasons for denying
leave, we conclude that it was an abuse of discretion for the district court to
deny the Estate’s post-judgment motion for leave to amend. We address each
of these conclusions below.
1. Failure to State a Claim Against the City
The district court dismissed the Estate’s case firstly because “[n]o
constitutional right to the proper implementation of adequate suicide
prevention protocols for pretrial detainees exists,” citing Taylor v. Barkes,
575 U.S. 822 (2015). While that is an accurate restatement of Taylor’s
holding, it is not an accurate characterization of the allegations in the Estate’s
case and is therefore an inappropriate application of Taylor. The Estate
charges that jail officers knew of Salas’s suicide risk and acted with
unreasonable disregard for his safety. Though the Estate’s original petition is
larded with legal conclusions and at times contradicts itself, it can reasonably
be read to plausibly allege the following facts: Officials at the Galena Park Jail
had actual knowledge of Salas’s suicide risk. They nonetheless placed him in
a cell that was not designed to safely house people who might harm
themselves. The officers on duty failed to check on Salas or monitor him
while he repeatedly sought to hang himself. Salas was left unmonitored long
enough for him to try to hang himself twice and to succeed on the third
attempt.
These factual allegations are different than the summary judgment
facts in Taylor, in which a jail contractor who had no knowledge of the
plaintiff’s mental health history used a suicide screening form whose sole
10
Case: 21-20170 Document: 00516315743 Page: 11 Date Filed: 05/11/2022
No. 21-20170
c/w No. 21-20333
defect was that it did not comply with the latest standards from the National
Commission on Correctional Health Care. 575 U.S. at 823. Thus, the
hypothetical right rejected by Taylor was a narrow, standalone right to
“proper implementation of adequate suicide prevention protocols.” Id. at
826. The case did not involve the broader, and unfortunately familiar, fact
pattern of indifference or inaction in the face of known risks. As the Second
Circuit put it:
[Taylor] did not conclude that it would have been reasonable for the
prison guards to completely forego suicide-prevention screening—to
simply not act at all. Nor did it conclude that it would have been
consistent with clearly established law for the prison guards to forego
preventive measures if they were aware that an inmate posed a suicide
risk—to operate in a state of knowing indifference. And so, the
Supreme Court did not address the distinct possibility that complete
inaction in the face of a risk to a prisoner’s health—or complete
indifference to that risk once it was known—could be unreasonable,
in violation of a prisoner’s clearly established constitutional rights.
Vega v. Semple, 963 F.3d 259, 279–80 (2d Cir. 2020).
It is well-settled in our circuit that complete indifference to the known
risk of suicide violates a pretrial detainee’s constitutional rights. See Hare v.
City of Corinth, Miss., 74 F.3d 633, 650 (5th Cir. 1996) (en banc); Garza v.
City of Donna, 922 F.3d 626, 632 (5th Cir. 2019) (constitutional rights of
pretrial detainee include “the right to protection from known suicidal
tendencies”) (citing Flores v. County of Hardeman, Tex., 124 F.3d 736, 738
(5th Cir. 1997)). Taylor did not curtail this right. See Est. of Bonilla ex rel.
Bonilla v. Orange Cty., Tex., 982 F.3d 298, 307 (5th Cir. 2020) (recognizing a
detainee’s “clearly established right to be protected from her known suicidal
11
Case: 21-20170 Document: 00516315743 Page: 12 Date Filed: 05/11/2022
No. 21-20170
c/w No. 21-20333
tendencies,” Taylor notwithstanding). The district court thus erred in
holding that the Estate failed to allege a violation of a constitutional right.
The district court was correct, however, that the Estate failed to
adequately plead facts showing that it was the City that was responsible for
this constitutional violation. The petition only contains legal conclusions of
municipal liability. For instance, that “Galena Park was indifferent to Hector
Salas’ serious medical needs, mental health needs and protection.” Or
“Defendant Galena Park failed to train and to failed to adequately supervise
its jail detention officers and employees and agents.” These statements are
grounds for liability that one might conclude exist from a certain set of factual
allegations, but they are not factual allegations themselves. There are no
specific factual allegations of a policy or custom of deliberate indifference to
detainees at risk of self-harm, nor any factual allegations that such a policy or
custom was causally connected to Salas’s death. The only facts alleged in the
original petition speak to the jail officers’ deliberate indifference—that they
knew Salas was suicidal, placed him in an unsafe cell, and left him
unsupervised for hours. These facts do not establish that the officers were
acting pursuant to a municipal policy or custom, that the policymaker was
deliberately indifferent, or that a municipal policy or custom was otherwise
the driving force of Salas’s constitutional deprivation.
2. Post-Judgment Denial of Leave to Amend
When the district court decided the motion to dismiss, only the City
of Galena Park remained as a defendant and thus municipal liability was the
only theory on which the Estate could have conceivably recovered. Chief
Rick Gonzalez had been dismissed as a defendant early in the case. And the
unnamed officers were dismissed “as improvidently joined,” apparently
because the Estate had failed to name defendants by the deadline the court
established to respond to the City’s motion to dismiss. However, the Estate
12
Case: 21-20170 Document: 00516315743 Page: 13 Date Filed: 05/11/2022
No. 21-20170
c/w No. 21-20333
did attempt to amend its petition, naming a new police chief and a specific
officer, Cynthia Jimenez, as defendants, as well as adding a number of new
factual allegations to buttress its claims. It did this without moving for leave
from the court or seeking consent from the City. Instead, the Estate simply
filed an amended complaint into the docket. On the City’s motion, the
district court struck the amended complaint and reiterated that the Estate
could seek leave.
After the district court ruled on the City’s motion to dismiss and
entered final judgment, the Estate filed a Rule 59(e) motion challenging the
striking of its amended complaint, and alternatively requested leave to amend
post-judgment. The Estate argued that Rule 15(a)(1)’s twenty-one-day
window to file as of course had been extended automatically by the extensions
to respond to the City’s motion to dismiss. Rule 15(a)(1) provides that a
plaintiff may amend its complaint once without leave of the court or consent
of the defendants within twenty-one days of service of a Rule 12(b) motion.
Our court has not said whether extending the time to respond to a Rule 12(b)
motion automatically extends the time to amend as of course, and the district
courts are divided on the question. See Tolliver v. Bank of New York Mellon as
Tr. for Certificate Holders of CWABS Inc., Asset Backed Certificates, Series
2007-3, No. 4:18-CV-00977, 2019 WL 3937341, at *6 (N.D. Tex. Aug. 5,
2019) (discussing split). Some hold that there is nothing in the text of Rule
15(a) to support such an idea. See Ellis v. Jean, No. 10-CV-8837, 2011 WL
6368555, at *7 (S.D.N.Y. Dec. 16, 2011). Others hold that the notice policies
of Rule 15(a) are satisfied when it is clear from the motion for an extension
that the plaintiff intends to respond to the pending motion to dismiss with an
amended complaint. See Tolliver, 2019 WL 3937341, at *6.
The Estate provides no authority, or even argument, to support its
claim that it was entitled to an automatic extension. In any event, the Estate’s
motions for extensions do not fit even into the latter category of the district
13
Case: 21-20170 Document: 00516315743 Page: 14 Date Filed: 05/11/2022
No. 21-20170
c/w No. 21-20333
court decisions discussed above. In both of its motions, the Estate stated that
it did intend to amend its petition, but by seeking the leave of the court, not
as of course under Rule 15(a)(1). It also filed an opposition memorandum to
the pending motion to dismiss in addition to its amended complaint, before
the amended complaint was struck. Nowhere in this memorandum did the
Estate argue that its amended complaint mooted the City’s motion to
dismiss. This suggests that the Estate did not consider its amended complaint
as a response to the pending Rule 12(b) motion, and therefore the City could
not reasonably have been on notice that the Estate intended to respond to the
pending motion to dismiss with its amended complaint. Under these
circumstances, we cannot say that the district court’s extensions
automatically enlarged the time in which the Estate could amend its petition
as of course.
Independent of this argument, the Estate requested leave to amend in
its Rule 59(e) motion. The district court denied leave, noting that the Estate
had failed to depose Officer Jimenez, exchange discovery, or to “otherwise
prosecute their case.” Finding no “manifest error of law,” no “manifest
injustice,” and “given no new facts”—the standard to which a Rule 59(e)
motion is generally held, Rosenzweig, 332 F.3d at 863—the court denied leave
to amend. Here the district court committed error by applying the wrong
standard to the Estate’s request for leave to amend, even couched as it was
in a Rule 59 motion. The proper standard to apply in this circumstance is
Rule 15’s “limited discretion.” 5 Id. at 864.
5
The City seems to argue that Rule 16(b)’s “good cause” standard should apply
to the request to amend since the Estate missed a deadline established in the district court’s
management order—though it also says it is “immaterial” which standard applies.
Regardless, we hold that the correct standard here is Rule 15’s. The management order did
not set a deadline for amending the petition. It only set a deadline for deposing the “fired
deputy.” See Sacerdote v. New York Univ., 9 F.4th 95, 115 (2d Cir. 2021) (reasoning that
14
Case: 21-20170 Document: 00516315743 Page: 15 Date Filed: 05/11/2022
No. 21-20170
c/w No. 21-20333
The Supreme Court has enumerated five factors to consider when
faced with a request for leave to amend: “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, [and] futility of amendment.” Foman
v. Davis, 371 U.S. 178, 182 (1962). Absent any of these factors, leave must be
freely given as the Federal Rules require. Id. Thus, though leave to amend is
technically within the discretion of the district court to grant or deny, that
discretion is significantly circumscribed.
The district court did not analyze these factors in denying leave to
amend, but we may nonetheless affirm the denial if “the record reflects
‘ample and obvious grounds for denying leave to amend.’” Mayeaux v.
Louisiana Health Serv. & Indem. Co., 376 F.3d 420, 426 (5th Cir. 2004)
(quoting Rhodes v. Amarillo Hosp. Dist., 654 F.2d 1148, 1154 (5th Cir. 1981)).
Reviewing the record, we see no such grounds. There has not been a failure
to cure deficiencies through earlier amendments, as there have been no
earlier amendments. There is no evidence of bad faith or dilatory motive on
behalf of the Estate, though it does appear that there has been considerable
unexplained delay. 6 But “delay alone is an insufficient basis for denial of leave
to amend.” Id. at 427. The delay must prejudice the City; for instance by
preventing it from preparing for trial, or by adding a new claim after the close
of discovery. Id.; Dueling v. Devon Energy Corp., 623 F. App’x 127, 130 (5th
Cir. 2015) (unpublished) (discussing cases of prejudicial delay). It does not
“litigants are entitled to rely on the meaning suggested by the plain language of a court
order”).
6
The Estate filed its amended complaint without leave on February 24, 2020. The
district court struck this complaint on March 17, 2020, providing in its order that the Estate
could still seek leave to amend. However, the Estate did not seek such leave until January
27, 2021, when it filed its Rule 59(e) motion.
15
Case: 21-20170 Document: 00516315743 Page: 16 Date Filed: 05/11/2022
No. 21-20170
c/w No. 21-20333
appear that amendment would prejudicially delay the City since little
discovery has been exchanged in this case. Only one dispositive pretrial
motion has been decided. Furthermore, the Estate’s amended complaint
seeks primarily to add a defendant and to allege additional facts about her
involvement in the underlying transaction of events already described in the
original petition.
The final factor, futility, also favors granting leave to amend here. As
discussed above, the Estate’s original petition failed to adequately plead a
municipal policy that was the driving force of Salas’s constitutional injury.
However, the amended complaint does, at the very least, state a claim of
deliberate indifference by Cynthia Jimenez, one of the jail officers alleged to
have known of Salas’s suicidal tendencies who nonetheless failed to take any
basic precautionary measures to prevent self-harm. As discussed above,
pretrial detainees have a constitutional right to protection from self-harm.
“And it is well-settled law that jail officials violate this right if ‘they had
gained actual knowledge of the substantial risk of suicide and responded with
deliberate indifference.’” Converse v. City of Kemah, Texas, 961 F.3d 771, 775
(5th Cir. 2020) (quoting Hare, 74 F.3d at 650). Failing to regularly monitor—
or ever monitor at all—a detainee known to be suicidal is the kind of
objectively unreasonable conduct we have previously determined satisfies
this standard. See id. at 778 (officer “streaming television shows instead of
monitoring the video of” suicidal detainee’s cell for forty-five minutes); cf.
Hyatt v. Thomas, 843 F.3d 172, 179 (5th Cir. 2016) (“continuous”
surveillance of suicidal detainee not deliberately indifferent); Est. of Pollard
v. Hood Cty., Tex., 579 F. App’x 260, 265 (5th Cir. 2014) (unpublished)
(checks roughly every fifteen minutes not deliberately indifferent). The
Estate’s proposed amended complaint alleges that Salas personally informed
Jimenez of his recent suicide attempt and hospitalization, as had Salas’s wife,
and that Jimenez failed to check on Salas at all. This is enough to state a claim
16
Case: 21-20170 Document: 00516315743 Page: 17 Date Filed: 05/11/2022
No. 21-20170
c/w No. 21-20333
of deliberate indifference to Salas’s constitutional rights to protection from
self-harm.
Considering the record in light of these factors, we see no substantial
reason to deny leave to amend the Estate’s petition and must conclude that
“the discretion of the district court is not broad enough to permit denial.”
Dussouy, 660 F.2d at 598. The Estate’s amended complaint does succeed in
stating a claim against Officer Jimenez and allowing it to amend its pleading
even at this late hour in the litigation would not unduly prejudice the
defendants. The district court abused its discretion in denying the Estate’s
request for leave in its post-judgment motion.
B. The Officer Suit
After the Estate’s amended complaint had been struck and while the
City’s motion to dismiss the City Suit was pending, the Estate filed a second
lawsuit in state court alleging almost identical facts and claims of deliberate
indifference by the individual officers present at the Galena Park Jail the night
Salas hanged himself. The principal difference between this new Officer Suit
and the City Suit pending in federal court at the time was that it named
Cynthia Jimenez and Adrian Herrera as the defendant officers, as the
amended complaint in the City Suit had attempted in part to do.
The Estate’s counsel filed the Officer Suit in state court at 12:05 A.M.
on December 1, 2018. The district court determined that this filing was
beyond the applicable limitations period. Federal law does not provide a
limitations period for § 1983 claims, and so courts look to the statute of
limitations for personal injury actions of the forum state. Whitt v. Stephens
Cty., 529 F.3d 278, 282 (5th Cir. 2008). In Texas, that period is two years. Id.
The date the limitation period begins to run, however, is determined by
federal law, which sets the date a claim accrues at the time the plaintiff
becomes aware that she has been injured. Piotrowski v. City of Houston, 51 F.3d
17
Case: 21-20170 Document: 00516315743 Page: 18 Date Filed: 05/11/2022
No. 21-20170
c/w No. 21-20333
512, 516 (5th Cir. 1995). This awareness encompasses two elements: (1)
knowledge of the fact that an injury has occurred, which is not the same as
knowledge that one has a legal claim, and; (2) knowledge of the identity of
the person who inflicted the injury. Id. In Texas, the limitations period is
computed by including the day on which the claim accrued, such that if a
claim accrued on January 1, 2020, the injured party must file her claim no
later than January 1, 2022. Texas courts “have uniformly held that a
complaint filed the day after the same calendar day two years after the action
accrued is one day too late.” Price v. City of San Antonio, Tex., 431 F.3d 890,
893 (5th Cir. 2005). Thus, the Estate had two calendar years in which to file
a § 1983 claim from the date Salas was aware of the facts constituting his
injury.
“A statute of limitations may support dismissal under Rule 12(b)(6)
where it is evident from the plaintiff’s pleadings that the action is barred and
the pleadings fail to raise some basis for tolling or the like.” Jones v. Alcoa,
Inc., 339 F.3d 359, 366 (5th Cir. 2003). Though our court has not articulated
the precise contours of when a protection from self-harm claim accrues, 7
even assuming it accrued at the time of Salas’s death (as opposed to earlier,
for instance, when the officers first exhibited their deliberate indifference
towards his risk of suicide), Salas’s case is barred by the statute of limitations.
The Estate’s complaint in this suit alleged that Salas died shortly after
midnight on November 30, 2018. Assuming this is the accrual date, the Estate
had until November 30, 2020 to file suit. Tragically, the Estate’s counsel
filed this pleading just five minutes late, at 12:05 A.M. on December 1, 2020.
7
The Third Circuit, for instance, has held that a “vulnerability-to-suicide” claim
accrues when the jail official acts with deliberate indifference towards the plaintiff’s risk of
self-harm, not necessarily when the plaintiff dies. Mullin v. Balicki, 875 F.3d 140, 159 (3d
Cir. 2017) (“The accrual of the claim is not tied solely to the prisoner’s suicide itself, but
also to the unconstitutional act by the prison official that gives rise to the claim.”).
18
Case: 21-20170 Document: 00516315743 Page: 19 Date Filed: 05/11/2022
No. 21-20170
c/w No. 21-20333
We can find no tolling provision in Texas law for close calls. See, e.g., Fisher
v. Westmont Hosp., 935 S.W.2d 222, 226 (Tex. App. – Houston 1996); see also
United States v. Locke, 471 U.S. 84, 101 (1985) (“If 1-day late filings are
acceptable, 10-day late filings might be equally acceptable. . . . Filing
deadlines, like statutes of limitations, necessarily operate harshly and
arbitrarily with respect to individuals who fall just on the other side of them,
but if the concept of a filing deadline is to have any content, the deadline must
be enforced.”). The district court was correct in determining that, on the face
of the petition, the Officer Suit was barred by Texas’s statute of limitations.
IV. Conclusion
The two cases in this appeal are each a procedural tangle. To
summarize our holding: In the City Suit, we find no error in the district
court’s dismissal of the petition on the grounds of failure to adequately plead
Monell liability. However, the district court did err in concluding that there is
no constitutional right to protection from self-harm while in custody, and it
further abused its discretion in denying leave to amend in the Estate’s post-
judgment motion to state claims of deliberate indifference to this right on
behalf of the jailer, Cynthia Jimenez. We therefore REVERSE the district
court’s order denying the Estate’s request for leave to amend in its Rule 59(e)
motion and REMAND for amendment and further proceedings in that case.
In the Officer Suit, we AFFIRM the district court’s judgment dismissing
the case as barred by Texas’s two-year statute of limitations.
19