     Case: 15-50165      Document: 00513248759         Page: 1    Date Filed: 10/27/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-50165                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                         October 27, 2015
JOANN WATERS,                                                              Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

CITY OF HEARNE, TEXAS; OFFICER CHRISTOPHER WITZEL; OFFICER
JANE DOE,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:14-CV-295


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Joann Waters sued the city of Hearne, Texas and two of its police officers
for violating her civil rights. The district court granted the Defendant’s motion
for judgment on the pleadings. Waters appealed in part. We AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                     I.      FACTS AND PROCEEDINGS
      Joann Waters (“Waters”), an African American female, has lived her
entire adult life in Robertson County, Texas. Waters is a retired teacher who
spends her time volunteering in her local community. Waters’s troubles with
the Hearne Police Department started in 2007. The owner of a local storage
facility called the police during an argument with Waters, who claimed that
her property was being unlawfully detained. Two officers responded: one was
Officer Christopher Witzel (“Witzel”), a named defendant in the present case.
After an unsuccessful conversation, Witzel ordered Waters to leave the
premises. That same afternoon, those same two officers arrested Waters at
her home under an outstanding warrant for a traffic violation. Waters asserts
that the officers, “as retaliation for Defendant Witzel’s perceived disrespect of
his authority,” . . . “snatched her out of her house, slammed her onto the ground
and handcuffed her.” Waters claims that Witzel injured her and refused her
medical treatment. Waters filed a lawsuit against the city of Hearne, Witzel,
and the second arresting officer for their alleged misconduct. The district court
dismissed the lawsuit with prejudice in 2010.
      Waters filed her current lawsuit in 2014, claiming that she has been an
ongoing target of the Hearne Police Department, Witzel, and Jane Doe (an
unidentified police officer) since the 2007 incident because she is a minority.
In addition to the 2007 arrest, Waters points to three additional incidents to
support her claim:


   1. Witzel responded to a call about a rabid skunk in Waters’s neighborhood
      and shot it. Waters claims that Witzel shot once, made eye contact with
      her, and “fired his gun about 3 more times, in what [Waters] believes
      was an attempt to intimidate her.”



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   2. Waters had a minor car accident in 2012; the other driver called the
      police. Witzel responded to the call. Witzel’s presence made Waters
      uncomfortable, so she asked him to call another officer to the scene and
      then leave. Witzel called for a new officer and a second Hearne police
      officer arrived on-scene. The officer issued Waters a ticket. A Texas
      Highway Patrol officer was also present. Despite the presence of two
      other law enforcement personnel, Witzel remained on-scene to “further
      intimidate [Waters] and influence in the investigation.”

   3. In November 2012, defendant Jane Doe followed Waters for several miles
      before eventually pulling her over because, allegedly, the light around
      Waters’s license plate was not working. Waters asked to leave her
      vehicle to check the light herself, but Jane Doe refused the request and
      issued Waters a verbal warning. But no ticket. When Waters checked
      her lights, they worked fine.

       Based on these four incidents and the Hearne Police Department’s “well-
documented, long [] history of illegally and unfairly targeting minorities,”
Waters sued the city of Hearne, Witzel, and Jane Doe under 42 U.S.C. §§ 1983,
1985, and 1989 and Texas state law. The district court granted the Defendant’s
motion for judgment on the pleadings, denying any relief to Waters.
       Waters raises two issues on appeal: 1 first, whether the district court
erred in barring Waters’s § 1983 claim against Jane Doe; and second, whether
the district court erred in dismissing Waters’s § 1983 claim against the city of
Hearne under a failure to train or failure to supervise theory.




       1 In her Statement of Issues, Waters lists a third issue—whether a jury could find that
the actions of the Hearne Police Department constituted a conspiracy under § 1985. She does
not address the § 1985 issue again in her brief: there is no further mention of § 1985, a
conspiracy, or any related district court error. Waters has waived this claim. See United
States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001) (“Generally speaking, a defendant
waives an issue if he fails to adequately brief it.”); see also FED. R. APP. P. 28(a)(8)(A) (the
brief must contain “appellant’s contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant relies”). And Waters challenges
neither the district court’s dismissal of the claims against Witzel nor the dismissal of the
Texas state law claims.
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                         II.   STANDARD OF REVIEW
      We review the district court’s grant of the Rule 12(c) motion for judgment
on the pleadings de novo. Gentilello v. Rege, 627 F.3d 540, 543 (5th Cir. 2010).
“[T]he central issue is whether, in the light most favorable to the plaintiff, the
complaint states a valid claim for relief.” Id. at 544 (quoting Doe v. MySpace,
Inc., 528 F.3d 413, 418 (5th Cir. 2008)). We accept factual allegations as true,
Doe, 528 F.3d at 418, but “[w]e do not accept as true conclusory allegations,
unwarranted factual inferences, or legal conclusions.” Plotkin v. IP Axess Inc.,
407 F.3d 690, 696 (5th Cir. 2005). The complaint therefore “must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Phillips v. City of Dallas, 781 F.3d 772, 775-76 (5th Cir.
2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).


                               III.   DISCUSSION
      A.    Waters’s § 1983 claim against Jane Doe was properly barred
            by limitations

      Waters alleges that officer Jane Doe’s traffic stop in November 2012 was
an illegal seizure under the Fourth Amendment. We need not reach the merits
of this claim because the district court was correct in holding that the claim
was barred by limitations. “The limitations period for a § 1983 action is
determined by the state’s personal injury limitations period.”           Whitt v.
Stephens Cnty., 529 F.3d 278, 282 (5th Cir. 2008). In Texas it is two years.
TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (2005). The traffic stop occurred
in November 2012; the district court dismissed Waters’s claim against Jane
Doe in January 2015; Waters had not identified Jane Doe by the court’s
dismissal. So the claim against Jane Doe was time barred.
      Waters argues that she made a reasonable attempt to identify Jane Doe
by sending an open records request to the city of Hearne requesting Doe’s

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name. She never heard back. This, she argues, is “good cause” to extend the
120 day time limit for service required by FED. R. CIV. P. 4(m). See Skoczylas
v. Fed. Bureau of Prisons, 961 F.2d 543, 545 (5th Cir. 1992) (citing FED. R. CIV.
P. 4([m])) (“relation back is allowed as long as the added party had notice
within 120 days following the filing of the complaint, or longer if good cause is
shown”). This argument is mistaken. First, in Skoczylas, the plaintiff actually
identified the proper defendant and served him with the amended complaint
within 4(m)’s required 120 days.         The only question was whether the
amendment related back to the date of the complaint: we held that it did.
Skoczylas, 961 F.2d at 544-45. In our case, Waters had not identified—much
less served—Jane Doe. Further, even if Waters could identify and serve Jane
Doe with an amended complaint, it would not be enough to overcome the
limitations period: the claim against Jane Doe is time-barred by our Circuit’s
view of Federal Rule of Civil Procedure 15(c). See Whitt, 529 F.3d at 283 (“an
amendment to substitute a named party for a John Doe does not relate back
under rule 15(c)”). “[R]ule 15(c) requires a ‘mistake concerning the identity of
the proper party’ and [we reason] that use of a John Doe moniker does not
constitute a ‘mistake.’” Id. (quoting Jacobsen v. Osborne, 133 F.3d 315, 320-21
(5th Cir. 1998)). Because Waters did not properly identify officer Jane Doe and
name her as a defendant within the limitations period, the district court
properly barred Waters’s § 1983 claim against Jane Doe. See Jacobsen, 13 F.3d
at 321 (when failure to name the correct officer is due to a lack of knowledge
as to her identify, plaintiff is prevented from relating back under Rule 15(c)).


      B.    The district court properly dismissed Waters’s § 1983 claim
            against the city of Hearne

      Waters argues that the district court erred in dismissing her claim
against the city of Hearne under a failure to train or failure to supervise theory.
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Waters believes that a jury could find that the city’s “long established history
of illegally and unfairly targeting minorities” coupled with her specific
allegations in this case “signify the city of Hearne’s failure to properly train or
supervise its officers.”
      The district court properly dismissed her § 1983 claim against the city of
Hearne. “A municipality’s culpability for a deprivation of rights is at its most
tenuous where a claim turns on a failure to train.” Connick v. Thompson, 131
S. Ct. 1350, 1359 (2011). “[F]or liability to attach based on an ‘inadequate
training’ claim, a plaintiff must allege with specificity how a particular
training program is defective.” Roberts v. City of Shreveport, 397 F.3d 287, 293
(5th Cir. 2005). In a failure to train or failure to supervise case, the plaintiff
must also show that: “(1) the supervisor either failed to supervise or train the
subordinate official; (2) a causal link exists between the failure to train or
supervise and the violation of the plaintiff’s rights; and (3) the failure to train
or supervise amounts to deliberate indifference.” Goodman v. Harris Cnty.,
571 F.3d 388, 395 (5th Cir. 2009) (quoting Smith v. Brenoettsy, 158 F.3d 908,
911–12 (5th Cir. 1998)). Waters has neither “alleged with specificity” how the
Hearne Police Department’s “training program is defective” nor met any of the
three Goodman prongs. The district court was correct to dismiss Waters’s
failure to train / supervise claim against the city of Hearne.
      We AFFIRM the district court’s order granting Defendant’s motion for
judgment on the pleadings.




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