Cynthia Brockman v. TDCJ, et al

Filing

UNPUBLISHED OPINION FILED. [09-40940 Affirmed in Part, and Vacated in Part.] Judge: FPB , Judge: ECP , Judge: LHS. Mandate pull date is 10/21/2010; denying as moot motion to intervene [6480201-2] [09-40940]

Cynthia Brockman v. TDCJ, et al

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Case: 09-40940

Document: 00511249877

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Date Filed: 09/30/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
September 30, 2010 N o . 09-40940 S u m m a r y Calendar Lyle W. Cayce Clerk

C Y N T H I A BROCKMAN, as Representative for Christopher Anson Brockman (D e c e a s e d ), P la in t if f -A p p e lla n t v. T E X A S DEPARTMENT OF CRIMINAL JUSTICE; UNIVERSITY OF TEXAS M E D IC A L BRANCH; CHARLOTTE ANNETTE BUSSEY, RN, D e fe n d a n t s -A p p e lle e s

A p p e a l from the United States District Court for the Eastern District of Texas U S D C No. 6:08-CV-00006

B e fo r e BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges. P E R CURIAM:* C y n t h ia Brockman, representative of her deceased son Christopher B r o c k m a n , appeals from the district court's dismissal of her claims against the T ex a s Department of Criminal Justice ("TDCJ"), the University of Texas Medical B r a n c h ("UTMB"), and various individual defendants. Finding that Brockman's

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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No. 09-40940 c la im s are without merit, we affirm the district court's dismissal of this case. I. O n January 5, 2006, Christopher Brockman hung himself while in c a r c e r a t e d at the Michael Unit of the TDCJ. Prior to his incarceration,

C h r is t o p h e r had been diagnosed with bipolar disorder, for which he received t r e a t m e n t of varying efficacy as an inmate. Approximately two years after C h r is t o p h e r 's death, on January 4, 2008, Cynthia Brockman filed suit under 42 U .S .C . § 1983 against the TDCJ, the UTMB, Warden Richard Thompson, UTMB e m p lo y e e s Kay McMurtry and Ronny Hill, and nurse Charlotte Anne Bussey. Brockman argued that the defendants had been deliberately indifferent to her s o n 's condition during his incarceration, violating the Eighth Amendment. U.S. C o n s t . amend. VIII. She also filed suit under Title II of the Americans with D is a b ilit ie s Act ("ADA"), asserting that the defendants' treatment of her son's c o n d itio n violated the ADA. 42 U.S.C. § 12132 (2006). B r o c k m a n asserts that during Christopher's incarceration, prison officials fr e q u e n t ly ignored or denied that her son was bipolar, refusing him treatment. She also claims that from time to time, Christopher was denied medication or it w a s confiscated, causing manic episodes. s o m e t im e s withheld She asserts that prison officials been effective at treating

medications that had

C h r is t o p h e r 's bipolar disorder, like lamictal, fish oil supplements, and vitamin E. She alleges that instead of these medications, prison officials provided

C h r is t o p h e r with ineffective medications with extreme side effects. B e y o n d these general allegations, Brockman also points to several specific i n s t a n c e s of the defendants' alleged failure to treat Christopher's bipolar d is o r d e r . Brockman alleges that in 2003, while Christopher was being held at M ic h a e l Unit, defendant Warden Thompson prevented him from receiving fish o il supplements. She also alleges that upon Christopher's transfer to Ferguson U n it in 2004, defendant Bussey evaluated Christopher's mental health and 2

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No. 09-40940 in c o r r e c t ly concluded that he was not suffering from any mental impairment, ig n o r in g his medical records and the clear signs of his bipolar disorder. Furthermore, Brockman claims that in late 2005, UTMB employees--specifically d e fe n d a n ts McMurtry and Hill--missed clear evidence that Christopher's mental h e a lt h was deteriorating and that he was a suicide risk. Specifically, she alleges t h a t on December 1, 2005, approximately a month before Christopher's suicide, M c M u r t r y determined that he was a low suicide risk and that he was merely " d r u g seeking." Brockman also alleges that Hill dared Christopher to kill

h im s e lf, but in her complaint she does not specify the date this allegedly occu rred . D e s p ite the allegedly clear evidence that Christopher was suicidal and d e lu s io n a l by late 2005, Brockman claims that when Christopher killed himself o n January 5, 2006, he was being held in isolation. She points out that this w o u ld have been a violation of the standards issued by National Commission on C o r r e c t io n a l Health Care ("NCCHC"), which direct that suicidal prisoners not b e housed in isolation, unless under constant supervision. Brockman alleges t h a t prison officials did not closely monitor Christopher before his suicide and t h a t log entries showing the contrary were fabricated. She asserts that when C h r is t o p h e r 's body was found, blood had already begun to pool in his lower body, in d ic a tin g that a fair amount of time had passed since his suicide. T h e district court assigned this case to a magistrate. After several of the d e fe n d a n t s filed motions to dismiss pursuant to Rule 12(b)(6), the magistrate r e c o m m e n d e d dismissing Brockman's claims. The magistrate concluded that s o v e r e ig n immunity defeated Brockman's § 1983 claims against the TDCJ, the U T M B , and the individual defendants in their official capacities. The magistrate a ls o concluded that any claims based on conduct before the two-year limitations p e r io d for § 1983 and ADA actions were time-barred. Thus, the magistrate fo u n d that all of Brockman's § 1983 claims against the individual defendants in 3

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No. 09-40940 t h e ir personal capacities were time-barred, since all of the allegations of specific m is c o n d u c t occurred before January 4, 2006. The magistrate also found that B r o c k m a n 's ADA claims could not succeed, as she had not pleaded enough facts r e g a r d in g Christopher's treatment on or after January 4, 2006 to show a p la u s ib le entitlement to relief. After de novo review, the district court adopted t h e magistrate's recommendation in full, over Brockman's objection.1 II. " T h is court reviews a district court's dismissal under Rule 12(b)(6) de novo, a c c e p t in g all well-pleaded facts as true and viewing those facts in the light most fa v o r a b le to the plaintiffs." Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5 t h Cir. 2008) (internal quotation marks omitted). "Factual allegations must b e enough to raise a right to relief above the speculative level . . . ." Bell Atl. C o r p . v. Twombly, 550 U.S. 544, 555 (2007). "To survive a motion to dismiss, a c o m p la in t must contain sufficient factual matter, accepted as true, to `state a c la im to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1 9 4 9 (2009) (quoting Twombly, 550 U.S. at 570). O n this appeal, Brockman does not dispute that her § 1983 claims against t h e institutional defendants and the individual defendants in their official c a p a c it ie s are blocked by sovereign immunity. However, she asserts that the d is t r ic t court misinterpreted the statute of limitations for § 1983 and ADA c la im s , unduly restricting the scope of the allegations that could be considered

The recitation of facts above is taken from Brockman's amended complaint. After the magistrate recommended dismissing Brockman's claims, Brockman objected to the recommendation and filed a new statement of facts that contradicted in certain respects the allegations included in her complaint, without explicitly acknowledging these differences. For example, in Brockman's complaint, she alleged that defendant Warden Thompson withheld fish oil from Christopher in 2003, while in her objection to the magistrate's recommendation, she alleged this occurred in June 2005. Ultimately, the differences between the two sets of allegations matter little. As will be explained below, claims based on alleged events before January 4, 2006 are time-barred, and in Brockman's objection to the magistrate's recommendation, her allegations only concerned events occurring before January 4, 2006.

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No. 09-40940 t o validate her claims. She also argues that the district court improperly refused t o allow her to amend her complaint to correct any deficiencies in her pleadings. We conclude that the district court applied the statute of limitations correctly a n d that Brockman's timely claims must fail. We also find that Brockman need n o t be provided an opportunity to amend her complaint. Consequently, we a ffir m the district court's dismissal of this case. A. " W e review de novo . . . questions of law, such as whether the statute of lim it a t io n s has run or whether equitable tolling applies." Newby v. Enron Corp., 5 4 2 U.S. 463, 468 (5th Cir. 2008). Brockman argues that the district court erred in concluding that all claims based on conduct occurring before January 4, 2006 a r e time-barred. However, we find that the court below correctly applied the s t a t u t e of limitations to the facts of this case. S in c e there is no federal statute of limitations for ADA or § 1983 claims, w e look to the general personal injury limitations period provided by the forum s t a t e , which in this case is Texas's two-year limitations period. See Tex. Civ. P r a c . & Rem. Code Ann. § 16.003(a); Owens v. Okure, 488 U.S. 235, 249-50 (1 9 8 9 ) (§ 1983); Frame v. City of Arlington, -- F.3d --, 2010 WL 3292980, at *8 (5 t h Cir. 2010) (ADA). Brockman argues that the Texas cause of action most c lo s e ly analogous to her claims is a wrongful death action, and she asserts that w e should therefore apply its two-year limitations period, for which a cause of a c t io n "accrues on the death of the injured person." Tex. Civ. Prac. & Rem. Code A n n . § 16.003(b). Under this approach, she asserts, all her claims would be t im e ly , as she filed her lawsuit within two years of Christopher's death. T h e Supreme Court, however, has rejected the notion that we should look t o the specifics of a particular § 1983 claim to determine the statute of lim it a t io n s to apply. Instead, the Court has created a bright line rule,

m a n d a t in g that "courts considering § 1983 claims should borrow the general or 5

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No. 09-40940 r e s id u a l statute for personal injury actions." Owens, 488 U.S. at 249. In any e v e n t , in both the § 1983 and ADA contexts, we have held that even if state law p r o v id e s the underlying limitations period, federal law establishes the date upon w h ic h claims accrue, which is "`when the plaintiff knows or has reason to know o f the injury which is the basis of the action.'" Jackson v. Johnson, 950 F.2d 263, 2 6 5 (5th Cir. 1992) (quoting Lavallee v. Listi, 611 F.2d 1129, 1131 (5th Cir. 1 9 8 0 )); see also Frame, 2010 WL 3292980, at *9. Since Christopher should have k n o w n the quality of the treatment he was receiving for his bipolar disorder b e fo r e January 4, 2006, the district court correctly concluded that all claims b a s e d on conduct preceding January 4, 2006 are time-barred. I n response, Brockman contends that we should apply Texas's "unsound m in d s " tolling rule, which she asserts would toll the statute of limitations for C h r is t o p h e r due to his bipolar disorder and render her claims timely. See Tex. C iv . Prac. & Rem. Code Ann. § 16.001. However, Brockman failed to raise this a r g u m e n t in the district court, and as such, she has waived it for this appeal. See Nunez v. Allstate Ins. Co., 604 F.3d 840, 846 (5th Cir. 2010) ("`An argument n o t raised before the district court cannot be asserted for the first time on a p p e a l.'" (quoting XL Specialty Ins. Co. v. Kiewit Offshore Servs., Ltd., 513 F.3d 1 4 6 , 153 (5th Cir. 2008))). T h e r e fo r e , we may only consider Brockman's allegations concerning C h r is t o p h e r 's treatment on or after January 4, 2006. On the basis of these a lle g a t io n s alone, Brockman's § 1983 and ADA claims must fail. B r o c k m a n 's § 1983 claims are time-barred. First,

All of Brockman's allegations

c o n c e r n i n g the individual defendants--Thompson, Bussey, McMurtry, and H ill-- r e la te to conduct that occurred before January 4, 2006. 2 Second, for

In Brockman's complaint, she did not specify when Hill taunted Christopher. However, in her objection to the magistrate's report and recommendation, she clarified that this taunting occurred before or during December 2005.

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No. 09-40940 B r o c k m a n 's ADA claims, all claims that are based on conduct before January 4, 2 0 0 6 are also barred. Her only specific allegations involving conduct on or after J a n u a r y 4, 2006 concern the failure of prison officials to adequately monitor C h r is t o p h e r pursuant to NCCHC standards. However, on this appeal,

B r o c k m a n has not provided any briefing concerning the failure of the defendants t o follow NCCHC standards. Furthermore, Brockman has also failed to provide a n y briefing concerning the elements of an ADA claim or how her allegations s a t is fy those elements, other than a lone conclusory statement that Christopher w a s disabled within the meaning of the ADA. These issues are therefore waived. See Goodman v. Harris County, 571 F.3d 388, 399 (5th Cir. 2009). Consequently, B r o c k m a n 's ADA and § 1983 claims are either untimely or have been waived on t h is appeal. B. B r o c k m a n also asserts that the district court erred in failing to allow her t o amend her complaint. After the magistrate recommended dismissing this c a s e , Brockman filed an objection to the magistrate's report with the district c o u r t, providing a supplemented list of allegations and asking the court for leave t o replead the facts in her complaint. The district court did not explicitly deny B r o c k m a n 's request, but implicitly did so, as it adopted the magistrate's report a n d dismissed this case. Generally, district courts should "freely give leave" for p la in t iffs to amend their complaints "when justice so requires." Fed. R. Civ. P. 1 5 (a )(2 ). We review a district court's denial of a motion to amend a complaint fo r abuse of discretion. See Forman v. Davis, 371 U.S. 178, 182 (1962). T h e district court did not abuse its discretion in failing to grant B r o c k m a n 's request to amend her pleadings. We have previously held that a r e fu s a l to allow amendment is not an abuse of discretion when the proposed a m e n d m e n t would be futile. See Avatar Exploration, Inc. v. Chevron, USA, Inc., 9 3 3 F.2d 314, 321 (5th Cir. 1991). 7 In Brockman's objection, all of her

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No. 09-40940 s u p p le m e n t a l allegations concerned events that occurred prior to January 4, 2 0 0 6 . As such, granting leave to amend the complaint with these allegations w o u ld be futile, as any claims based on them would be time-barred. Furthermore, to the extent Brockman was requesting leave to amend her c o m p la i n t to add allegations concerning events on or after January 4, 2006, r e fu s a l of this request also would not have been an abuse of discretion. We have h e ld that a "bare request in an opposition to a motion to dismiss--without any in d ic a tio n of the particular grounds on which the amendment is sought--does n o t constitute a motion [to amend] within the contemplation of Rule 15(a)." United States ex. rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 3 8 7 (5th Cir. 2003) (quoting Confederate Mem'l Ass'n, Inc. v. Hines, 995 F.2d 295, 2 9 9 (D.C. Cir. 1993)). Since Brockman did not provide any indication of what a lle g a t io n s concerning the defendants' conduct during the limitations period she w o u ld have added to her complaint, the district court did not abuse its discretion in refusing her request for leave to amend. C. T h e United States filed a motion to intervene in this case for the purpose o f defending the constitutionality of Title II of the ADA's abrogation of state s o v e r e ig n immunity. In United States v. Georgia, the Supreme Court held that w h e n courts consider Title II claims, they should first address whether the c o n d u c t challenged by the plaintiff violates Title II, then resolve whether this c o n d u c t also violates the Fourteenth Amendment, and finally, if Title II is v io la t e d but not the Fourteenth Amendment, address whether Title II validly a b r o g a t e s sovereign immunity in these circumstances. 546 U.S. 151, 159 (2006). The purpose of this rule is to prevent courts from unnecessarily addressing the c o n s t it u t i o n a l issue of whether the ADA may validly abrogate sovereign im m u n it y in the absence of a violation of the Fourteenth Amendment. I n this case, the United States argues that the district court failed to 8

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No. 09-40940 fo llo w Georgia properly. Indeed, the magistrate's report and recommendation, a d o p t e d in full by the district court, seems to have violated the order of o p e r a t io n s established by Georgia. The magistrate's report did not explicitly d e t e r m in e whether a violation of Title II took place. Instead, it found that B r o c k m a n had failed to demonstrate any Eighth Amendment violation and that c o n s e q u e n t ly she had "not alleged facts abrogating UTMB and TDCJ's sovereign im m u n it y with respect to her ADA claims." As such, the opinion below could be r e a d to establish implicitly that the ADA may only abrogate sovereign immunity w h e n accompanied by a violation of the Fourteenth Amendment. We note that t h is error is understandable, since Brockman's claims may be more readily c h a r a c t e r iz e d as Eighth Amendment deliberate indifference claims than ADA c la im s . P r e v io u s ly , when lower courts have unnecessarily reached issues c o n c e r n in g the constitutionality of the ADA's abrogation of sovereign immunity, t h e offending portions of their decisions have been vacated on appeal. See Haas v . Quest Recovery Servs., 549 U.S. 1163 (2007); Zibbell v. Mich. Dep't of Human S e r v s ., 313 F. App'x 843, 847-48 (6th Cir. 2009). Because we conclude on appeal t h a t Brockman's ADA claims are either untimely or have been waived, we V A C A T E the portions of the opinion below which concern the abrogation of s o v e r e ig n immunity under the ADA. Accordingly, the motion to intervene is d e n ie d as moot. III. C o n s e q u e n t ly , we AFFIRM the district court's dismissal of this case in p a r t and VACATE the portions of the district court's opinion which concern t h e abrogation of sovereign immunity under the ADA. The motion to in t e r v e n e is DENIED as MOOT.

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