     Case: 14-20778   Document: 00513238362     Page: 1   Date Filed: 10/20/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                 No. 14-20778                   October 20, 2015
                                                                  Lyle W. Cayce
                                                                       Clerk
MARY KING-WHITE; A. W.,

             Plaintiffs - Appellants

v.

HUMBLE INDEPENDENT SCHOOL DISTRICT; AMANDA MICHELLE
FEENSTRA; GUY SCONZO; CHARLES NED; JUAN MELENDEZ; TAMMY
MCHALE; CRAIG STOWERS; ALICIA NARCISSE,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Southern District of Texas


Before BENAVIDES, CLEMENT, and HIGGINSON, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
      In this case we determine the Texas statute of limitations that applies to
Title IX and § 1983 claims involving sexual abuse. Plaintiffs-Appellants Mary
King-White and her daughter, A.W. (collectively, “Plaintiffs”), appeal the
12(b)(6) dismissal of their Title IX and § 1983 claims against Humble
Independent School District (“HISD”) and several of its employees. Plaintiffs’
claims stem from the alleged sexual molestation of A.W. by her teacher,
Amanda Feenstra (“Feenstra”). Feenstra was hired as a dance instructor at
Humble High School in 2009, and Plaintiffs allege that Feenstra sexually
abused A.W. continuously from 2009 through 2011 while A.W. was her student.
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Feenstra pled guilty to a criminal charge of improper relationship with a
student in 2013, and Plaintiffs then brought the instant lawsuit against
Feenstra, HISD, and various HISD administrators/employees (the “School
Officials”) in their official and individual capacities. Plaintiffs asserted Title IX
and § 1983 claims—as well as several state-law causes of action—against
HISD and the School Officials, alleging that they knew about Feenstra’s abuse
and failed to stop it. HISD and the School Officials moved to dismiss the Title
IX and § 1983 claims as untimely, among other things, and the district court
granted their motions. Finding the claims barred by the relevant statute of
limitations, we now AFFIRM.
                               I. BACKGROUND
      Plaintiffs allege that Feenstra used her position as A.W.’s dance
instructor at Humble High School to establish a domineering, sexually abusive
relationship with A.W. Plaintiffs claim that soon after Feenstra was hired by
HISD in 2009, she began meeting with A.W. frequently outside of school.
According to Plaintiffs, these meetings led to inappropriate sexual advances
and ultimately, beginning in the spring of 2009 when A.W. was 16 years old,
to repeated instances of sexual abuse. It is also undisputed that at some point,
with the permission of King-White, A.W. moved into Feenstra’s home.
Plaintiffs contend that Feenstra continued to abuse A.W., both at home and on
school premises, until A.W.’s graduation from Humble High School in 2011.
      Plaintiffs additionally claim that the School Officials named in the
complaint (HISD’s superintendent and Humble High School’s principal, vice
principals, and counselor) had knowledge of Feenstra’s abuse, both because (1)
inappropriate touching and other troubling behavior occurred in plain view,
and (2) a number of parents, including King-White herself, complained to
administrators about the relationship between Feenstra and A.W. Despite
these indications of abuse, Plaintiffs assert that the School Officials did not
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                                       No. 14-20778
scrutinize Feenstra or limit her interactions with A.W. Plaintiffs also allude to
certain HISD “policies” that ostensibly allowed Feenstra’s abuse to continue,
including the endorsement of off-campus teacher–student interactions and
unchaperoned school trips.
       Sometime after graduation, A.W. told a former teacher about Feenstra’s
abuse, and the teacher reported Feenstra to school authorities. Around March
of 2013, Feenstra was arrested and charged with a felony of improper
relationship with a student. On October 23, 2013, Feenstra pled guilty and was
sentenced to ten years of deferred adjudication and probation.
       Plaintiffs filed the present suit on December 4, 2013, alleging violations
of their civil and constitutional rights under 42 U.S.C. § 1983 and Title IX of
the Education Act of 1972. Plaintiffs also asserted various tort claims under
Texas state law. Named as defendants in the original complaint were Feenstra,
HISD, and the School Officials. HISD and the School Officials moved to dismiss
Plaintiffs’ claims against them pursuant to Federal Rule of Civil Procedure
12(b)(6), arguing that the federal claims were time-barred, the pleadings were
insufficient, and the individual Defendants were entitled to qualified
immunity. 1 The district court granted the motions to dismiss, concluding (as
relevant to this appeal) that the § 1983 and Title IX claims were untimely.
Plaintiffs now argue that the district court erred in determining that these
claims were time-barred. 2 Plaintiffs contend that, rather than applying Texas’s



       1  Feenstra did not join in these motions and is not a party to the present appeal.
Feenstra later moved for partial summary judgment and judgment on the pleadings as to the
claims asserted against her. On July 27, 2015, the district court granted Feenstra’s motion
for judgment on the pleadings as to all federal claims, declined to exercise supplemental
jurisdiction over the state law claims, and denied as moot Feenstra’s motion for partial
summary judgment. Plaintiffs have separately appealed that order.
        2 While the district court dismissed all claims against HISD and the School Officials,

including the state-law tort claims, Plaintiffs have only appealed the dismissal of the Title
IX and § 1983 claims. We thus limit our review to those claims.
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general two-year personal injury statute of limitations, the district court
should have applied the five-year exception for sexual assault claims. Plaintiffs
also argue that (1) the district court incorrectly determined accrual of the
federal claims for purposes of calculating whether the limitations period had
expired, and (2) the court abused its discretion in refusing to apply certain
equitable tolling principles. Finally, Plaintiffs contest the district court’s
rulings with respect to complaint sufficiency, qualified immunity, and leave to
amend the complaint.
      We conclude that the district court did not err in finding that Plaintiffs’
Title IX and § 1983 claims are time-barred. Accordingly, we do not reach the
remaining issues.
                          II. STANDARD OF REVIEW
      “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). We review a district court’s dismissal
under Rule 12(b)(6) de novo, “accepting all well-pleaded facts as true and
viewing those facts in the light most favorable to the plaintiffs.” Gonzalez v.
Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting Dorsey v. Portfolio Equities,
Inc., 540 F.3d 333, 338 (5th Cir. 2008)). When the district court declines to
“exercise its equitable discretion to toll,” however, “we review [that] decision[]
on the pleadings only for abuse of discretion.” Teemac v. Henderson, 298 F.3d
452, 456 (5th Cir. 2002). In conducting our review, “we assume the pleaded
facts as true, and we will remand if the plaintiff has pleaded facts that justify
equitable tolling.” Id.
                               III. DISCUSSION
A. Selecting the Appropriate Statute of Limitations


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       When a federal statute does not contain a limitations period (as is the
case for Title IX and § 1983), the settled practice is to borrow an “appropriate”
statute of limitations from state law. 3 See Goodman v. Lukens Steel Co., 482
U.S. 656, 660 (1987), partially superseded by statute as stated in Jones v. R.R.
Donnelley & Sons Co., 541 U.S. 369, 371 (2004); see also 42 U.S.C. § 1988. The
district court in this case dismissed Plaintiffs’ Title IX and § 1983 claims after
determining that both claims were governed by Texas’s two-year statute of
limitations for personal injury actions, which is set out in Section 16.003 of the
Texas Civil Practice and Remedies Code. Section 16.003 states in relevant part:
       Except as provided by Sections 16.010, 16.0031, and 16.0045, a
       person must bring suit for trespass for injury to the estate or to the
       property of another, conversion of personal property, taking or
       detaining the personal property of another, personal injury,
       forcible entry and detainer, and forcible detainer not later than two
       years after the day the cause of action accrues.
TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a). Reference to Section 16.0045
of the statute, however, reveals that causes of action stemming from sexual
assault are governed by a longer, five-year limitations period. 4 See id. §
16.0045(b). Plaintiffs argue on appeal that, because their Title IX and § 1983
claims are based on the sexual abuse of A.W., the district court should have
applied the longer limitations period from Section 16.0045 to those claims. We
disagree.




       3 Of course, this rule only applies to statutes enacted prior to passage of 28 U.S.C. §
1658, which now governs in such circumstances. See 28 U.S.C. § 1658(a); Jones v. R.R.
Donnelley & Sons Co., 541 U.S. 369, 371 (2004).
       4 Section 16.0045 was amended, effective September 1, 2015, to extend the limitations

period from five to fifteen years for claims involving sexual assault or abuse of a child. TEX.
CIV. PRAC. & REM. CODE ANN. § 16.0045(a) (West Supp. 2015). Plaintiffs filed their briefs
before the amendment took effect, however, when the period was five years for any claim
based on sexual assault. In any event, the amendment does not change our analysis, as we
conclude that the provision does not apply.
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                                  No. 14-20778
      In Wilson v. Garcia, the Supreme Court held that § 1983 claims are
subject to state personal injury statutes of limitations. 471 U.S. 261, 280
(1985), partially superseded by statute as stated in Jones, 541 U.S. at 377–80.
Then, in Owens v. Okure, the Supreme Court refined Wilson and held that
“where state law provides multiple statutes of limitations for personal injury
actions, courts considering § 1983 claims should borrow the general or residual
statute for personal injury actions.” 488 U.S. 235, 249–50 (1989). Following
Wilson and Owens, we have recognized that Texas’s two-year statute of
limitations for personal injury actions applies to § 1983 claims filed in the
state. See Piotrowski v. City of Houston, 51 F.3d 512, 515 n.5 (5th Cir. 1995).
As a preliminary matter, we must now determine whether Title IX claims
should be treated like § 1983 claims and governed by state statutes of
limitations for personal injury actions. If so, we must address Plaintiffs’
argument that properly applying the Texas personal injury statute to the
claims in this case means applying the longer period from Section 16.0045
rather than the two-year period from Section 16.003.
      1. The Statute of Limitations Applicable to Title IX Claims
      While this court has not yet considered the appropriate limitations
period for Title IX claims, every other circuit to have considered the matter in
a published opinion has concluded that Title IX is subject to the same
limitations period as § 1983. See, e.g., Varnell v. Dora Consol. Sch. Dist., 756
F.3d 1208, 1212–13 (10th Cir. 2014); Stanley v. Trs. of Cal. State Univ., 433
F.3d 1129, 1134 (9th Cir. 2006); Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615,
618 (8th Cir. 1995). We now join our sister circuits and hold that Title IX should
be treated like § 1983 for limitations purposes. We find the Eighth Circuit’s
opinion in Egerdahl v. Hibbing Community College particularly persuasive on
this point. The court in that case recognized that Title IX is “analogous to §
1983” and is modeled after Title VI, which itself is “controlled by the same
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                                       No. 14-20778
considerations which inhere in . . . § 1983 claims.” 5 Egerdahl, 72 F.3d at 618
(quoting Chambers v. Omaha Pub. Sch. Dist., 536 F.2d 222, 225 n.2 (8th Cir.
1976)). The Supreme Court’s reasoning in applying state personal injury
limitations periods to § 1983 claims thus applies with equal force to Title IX
claims, and we conclude that in accordance with Wilson and Owens, both Title
IX and § 1983 should be governed by state statutes of limitations for personal
injury actions.
       2. Whether to Apply Section 16.003 or 16.0045
       Having determined that Title IX and § 1983 are subject to the same
statute of limitations, we turn to Plaintiffs’ contention that Texas’s specific
limitations period for sexual assault claims in Section 16.0045, rather than the
general two-year limitations period in Section 16.003, applies to the claims in
the present case. As noted above, Owens makes clear that the statute of
limitations for all § 1983 claims is the relevant state’s “general or residual
statute for personal injury actions.” 488 U.S. at 250. The court below concluded
that Section 16.003, which sets out a generally applicable two-year limitations
period for causes of action involving personal injury, should govern Plaintiffs’
claims under Owens. Plaintiffs argue on appeal, however, that this conclusion
required the district court to “ignore” or “strike” the language from 16.003 that
specifically references Section 16.0045’s longer period for claims involving
sexual assault. In other words, Plaintiffs concede that the district court should
have applied the “general or residual” personal injury statute under Owens,
but they argue that because Texas’s “general” statute contains a specific
exception for sexual assault, the longer period in Section 16.0045 applies to


       5 While not binding, we have also acknowledged the similarity between Title VI and §
1983 in an unpublished opinion, recognizing that “[f]or actions brought under § 1983 and
Title VI, we borrow the forum state’s general personal injury limitations period, which in
Texas is two years.” Griffin v. Round Rock Indep. Sch. Dist., 82 F.3d 414, at *1 (5th Cir. 1996)
(per curiam).
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                                 No. 14-20778
Title IX and § 1983 claims stemming from sexual assault or abuse. We reject
this argument, which is based on a misreading of Owens and a
misunderstanding of the relevant inquiry.
      Prior to Wilson and Owens, lower courts applied a myriad of different
statutes of limitations to § 1983 claims, and the applicable statute in a given
case often depended on the extent to which the particular facts underlying the
claim could be analogized to a specific state-law cause of action. Owens, 488
U.S. at 240. The Supreme Court’s decisions in Wilson and Owens reflected an
effort to eliminate the “confusion and inconsistency” that had grown from this
“practice of seeking state-law analogies for particular § 1983 claims.” Id. In
Wilson, the Court recognized the futility of seeking such analogies, noting that
“[i]f the choice of the statute of limitations were to depend upon the particular
facts or the precise legal theory of each claim, counsel could almost always
argue . . . that two or more periods of limitation should apply to each § 1983
claim.” 471 U.S. at 273–74. The inevitable result of this approach, in the
Court’s view, would be that “different statutes of limitations would be applied
to the various § 1983 claims arising in the same State.” Id. at 274. To avoid
this result, the Court determined that all § 1983 claims should be subject to “a
simple, broad characterization” as personal injury actions for limitations
purposes. Id. at 272, 280.
      While Wilson accordingly directed courts to apply state personal injury
statutes of limitations to § 1983 claims, confusion remained as to the
appropriate limitations period for § 1983 claims in states with more than one
statute for personal injury actions. Owens, 488 U.S. at 241. Some courts
applied periods assigned to “certain enumerated intentional torts,” while other
courts “endorsed the use of the state residuary statute of limitations.” Id. The
Supreme Court was thus compelled to clarify its holding from Wilson, which it
did in Owens by recognizing that the same concerns for simplicity and
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predictability that motivated Wilson also favored application of the “general or
residual statute for personal injury actions” in situations where multiple
personal injury limitations periods could apply. Id. at 248–50. The Court noted
that some states had a “general provision which applie[d] to all personal injury
actions with certain specific exceptions,” while others had “a residual provision
which applie[d] to all actions not specifically provided for.” Id. at 246–47. But
in either case, the Court recognized that “each State would have no more than
one” residual or general limitations period, and it concluded that this single,
“easily identifiable” period should govern all § 1983 claims regardless of their
factual underpinnings. Id. at 247–48.
      As the above discussion should make clear, Plaintiffs’ argument that
Section 16.0045’s specific limitations period for sexual assault claims should
apply over the general two-year period in Section 16.003 is foreclosed by Wilson
and Owens. Section 16.003’s two-year limitations period is the “general”
personal injury period contemplated by Owens, and the fact that Section 16.003
explicitly references Section 16.0045 is irrelevant. As the Supreme Court
noted, numerous states have “general provision[s]” for personal injury actions
with “certain specific exceptions,” and the Court in Owens clearly intended for
the “general provision[s]” to govern all § 1983 claims regardless of whether any
of the “specific exceptions” could arguably apply under the particular facts of
the case. Thus, in urging us to analogize their federal claims to state claims
involving sexual assault and apply a limitations period that is different from
the “general” period in Section 16.003, Plaintiffs are asking us to employ
precisely the practice that the Supreme Court rejected in Wilson and Owens.
Indeed, the New York statute of limitations addressed in Owens stated that
actions for personal injury had to be commenced within three years “except as
provided in” three other enumerated sections. Owens, 488 U.S. at 238 n.1. This
gave the Supreme Court no pause, however, in concluding that the court below
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                                  No. 14-20778
had correctly applied the three-year period “governing general personal injury
actions.” Id. at 251.
      Nevertheless, Plaintiffs devote extensive briefing on this point to
statutory interpretation and legislative intent, arguing that Owens does not
countenance disregard for the plain language of a statute and the clear desire
of a state legislature to give sexual assault plaintiffs more time to bring their
claims. This argument, however, misapprehends the nature of a federal court’s
task in selecting a state limitations period for a federal claim. The Supreme
Court in Wilson referred to the borrowing of a state limitations period as the
“adopt[ion of] a local time limitation as federal law.” Wilson, 471 U.S. at 266–
67. In other words, federal courts do not apply state limitations periods as a
matter of state law—rather, the absence of a federal limitations provision
sometimes necessitates the “adoption” of a state limitations period as a matter
of federal law. Thus, statutory interpretation and the intent of the Texas
legislature do not affect our selection of a state limitations period for Title IX
and § 1983 claims. As the Ninth Circuit has put it, “[t]he issue is not what
statute of limitations the [state] legislature intended to apply to this federal
action, but rather what state statute of limitations the federal claim should
‘borrow’”; Plaintiffs’ “lengthy statutory interpretation analysis and speculation
about the intent of [state] legislators is therefore irrelevant.” Stanley, 433 F.3d
at 1135.
      To summarize: Owens instructs us to apply the “general or residual”
personal injury statute of limitations to § 1983 claims. We believe this
instruction should extend to Title IX claims as well. In Texas, applying the
“general or residual” personal injury statute of limitations means applying the
two-year period in Section 16.003, regardless of whether the facts underlying
the particular claim make an exception potentially applicable. We accordingly


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                                 No. 14-20778
conclude that the district court did not err in applying the two-year limitations
period from Section 16.003 to Plaintiffs’ Title IX and § 1983 claims.
B. Determining When Plaintiffs’ Claims Accrued
      Recognizing that the district court properly applied a two-year statute of
limitations to Plaintiffs’ Title IX and § 1983 claims does not end our analysis,
however. We must still determine whether the district court was correct in
concluding that the two-year limitations period had expired. Absent tolling,
the limitations period runs from the moment a plaintiff’s claim “accrues,” and
while we borrow the limitations period from state law, “the particular accrual
date of a federal cause of action is a matter of federal law.” Frame v. City of
Arlington, 657 F.3d 215, 238 (5th Cir. 2011). The district court determined that
Plaintiffs’ federal claims accrued at the time A.W. knew she was being abused
in 2009—thus, while the claims were tolled under Texas law until A.W. turned
18, the clock immediately began to run when she reached the age of majority
in the spring of 2011. This being more than two years before the instant suit
was filed, the district court concluded—after rejecting Plaintiffs’ equitable
tolling arguments—that the claims were barred.
      Setting aside questions of equitable tolling, which we discuss below, we
must determine whether the district court correctly identified the time of
accrual. We have held that “[u]nder federal law, a claim accrues and ‘the
limitations period begins to run the moment the plaintiff becomes aware that
he has suffered an injury or has sufficient information to know that he has
been injured.’” Spotts v. United States, 613 F.3d 559, 574 (5th Cir. 2010)
(quoting Piotrowski, 237 F.3d at 576). Plaintiffs argue that the district court
erred in equating the “injury” for accrual purposes with the abuse suffered by
A.W.; they contend that instead, the relevant injury should be viewed as
HISD’s and the School Officials’ ratification of and deliberate indifference to
the abuse. Plaintiffs assert that their claims thus could not have accrued until
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they became aware of certain facts about the School Officials’ conduct and
HISD’s policies during the pendency of Feenstra’s criminal case. This being a
mere six weeks before they filed the instant suit, Plaintiffs believe they were
well within the limitations period. We are not persuaded.
      Even if we assume that the relevant injury was the conduct of HISD and
the School Officials rather than the sexual abuse itself, Plaintiffs had sufficient
awareness of that conduct prior to the spring of 2011 for their claims to accrue.
We have previously explained that “[a] plaintiff’s awareness encompasses two
elements: (1) [t]he existence of the injury; and (2) causation, that is, the
connection between the injury and the defendant’s actions.” Piotrowski, 237
F.3d at 576 (citation and internal quotation marks omitted). However, “[a]
plaintiff need not know that she has a legal cause of action” for her claim to
accrue; “she need know only the facts that would ultimately support a claim.”
Id. Finally, “awareness” for accrual purposes does not mean actual knowledge;
rather, all that must be shown is the existence of “circumstances [that] would
lead a reasonable person to investigate further.” Id. (citation and internal
quotation marks omitted).
      Applying these principles to the present case, the circumstances alleged
in Plaintiffs’ complaint would undoubtedly have prompted a reasonable person
to investigate HISD’s and the School Officials’ conduct further. A.W. was sadly
quite aware of the abuse she suffered, and she was also aware that her abuser
was her teacher. King-White knew that A.W. was living with her teacher—in
fact, she consented to the arrangement—and she also personally complained
to the School Officials about the relationship between Feenstra and A.W. Thus,
even framing the injury as the failure to stop Feenstra’s abuse, rather than the
abuse itself, Plaintiffs’ allegations demonstrate that A.W. and King-White
were both sufficiently aware of the facts that would ultimately support their
claims by the time A.W. turned 18 in the spring of 2011. While they may not
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have known about complaints from other parents or certain alleged HISD
“policies,” a reasonable person who knew that her daughter was living with a
teacher, and who had already lodged complaints with administrators that had
gone unheeded, would have investigated further.
      Plaintiffs nonetheless believe that our opinion in Piotrowski supports
their accrual argument. We concluded there that we could not say as a matter
of law that the limitations period for a § 1983 claim against a city ran when
the plaintiff was shot by a hired criminal, because particular facts about the
police department’s collusion with the criminal may not have been available to
the plaintiff until later. Piotrowski, 237 F.3d at 577. Piotrowski is eminently
distinguishable, however. The plaintiff’s claim in that case was based on a
city’s “affirmative involvement in [a] contract on [the plaintiff’s] life,” and we
noted that the plaintiff could not have known “that the City, as opposed to
individual officers, had actively protected and/or assisted” the criminal at the
time she was shot. Id. In contrast, Plaintiffs here were at all times aware of
the connection between Feenstra, HISD, and the School Officials, and King-
White knew at the very least that her complaints about Feenstra to School
Officials had not been addressed. Indeed, Plaintiffs’ complaint makes clear
that both Plaintiffs knew Feenstra was a teacher employed by HISD, and the
complaint repeatedly reiterates the close connection between Feenstra’s
actions and HISD. This case is thus distinct from Piotrowski, and Plaintiffs’
argument to the contrary is unavailing.
      Plaintiffs also urge us to adopt a “delayed accrual” rule with respect to
HISD, because the claims against HISD are necessarily based on official
“policies or customs” that could not have been known at the time of Feenstra’s
abuse. Plaintiffs rely for this argument on caselaw from the Second Circuit,
which stated in Pinaud v. County of Suffolk that § 1983 claims against counties
or municipalities, because they require the existence of an official policy or
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custom, do not “necessarily accrue upon the occurrence of a harmful act, but
only later when it is clear, or should be clear, that the harmful act is the
consequence of” that policy or custom. 52 F.3d 1139, 1157 (2d Cir. 1995).
However, the Second Circuit more recently undercut the force of that opinion
in an unpublished decision, where a different panel referred to the discussion
from Pinaud as “demonstrably dictum” and “decline[d] to eviscerate” the
ordinary accrual rule “by holding that the limitations period for a cause of
action against a municipality runs anew upon the future discovery of facts
tangentially related to” the claim. Lawson v. Rochester City Sch. Dist., 446 F.
App’x 327, 329 (2d Cir. 2011) (citation omitted); see also Tengood v. City of
Philadelphia, 529 F. App’x 204, 210 & n.5 (3d Cir. 2013) (finding the argument
that the circuit should adopt Pinaud’s “dicta” waived and noting that “[t]here
is also no basis in our precedent for applying such a ‘delayed accrual’ theory”).
We likewise decline to change our well-settled accrual rules based on dicta from
the Second Circuit’s Pinaud opinion. As such, we apply the ordinary rules
discussed above and conclude that Plaintiffs’ claims accrued by the time A.W.
turned 18 in the spring of 2011. Because this was more than two years before
Plaintiffs filed suit, Plaintiffs’ Title IX and § 1983 claims are time-barred
unless equitable tolling principles apply.
C. Determining Whether Equitable Tolling Principles Apply
      Plaintiffs’ final argument with respect to timeliness is that even if the
applicable statute of limitations would otherwise bar their claims against
HISD and the School Officials, the district court should have applied certain
equitable tolling principles, including fraudulent concealment and the
discovery rule, to forestall the expiration of the limitations period. The record
before us, however, dispels any notion that the equitable principles identified
by Plaintiffs would be available to save their claims.


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                                  No. 14-20778
      When a federal cause of action borrows a state statute of limitations,
“coordinate tolling rules” are usually borrowed as well. Hardin v. Straub, 490
U.S. 536, 539 (1989) (quoting Bd. of Regents of the Univ. of N.Y. v. Tomanio,
446 U.S. 478, 484 (1980)). We have accordingly recognized that state equitable
tolling principles control in § 1983 cases. Rotella v. Pederson, 144 F.3d 892, 897
(5th Cir. 1998). This includes tolling based on fraudulent concealment and the
“discovery rule.” See id. at 896–97.
      Under Texas law, the “discovery rule” provides a “very limited exception
to statutes of limitations.” Computer Assocs. Int’l, Inc., v. Altai, Inc., 918
S.W.2d 453, 455 (Tex. 1996), superseded by statute as stated in Baker Hughes,
Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 3 (Tex. 1999). While accrual of a Texas
personal injury action generally occurs when “a wrongful act causes an injury,
regardless of when the plaintiff learns of that injury,” the “judicially-crafted”
discovery rule defers accrual of the cause of action if “the nature of the injury
incurred is inherently undiscoverable and the evidence of injury is objectively
verifiable.” Childs v. Haussecker, 974 S.W.2d 31, 36–37 (Tex. 1998) (citation
and quotation marks omitted). In such a circumstance, the cause of action does
not accrue until the plaintiff knows or reasonably should have known of the
injury. Id. at 37. In the present case, it is unclear from the briefing whether
Plaintiffs are arguing for application of Texas’s discovery rule or some form of
federal discovery rule. Indeed, their discussion of the discovery rule appears to
be almost indistinguishable from the accrual argument already addressed in
this opinion. The reason may be that the accrual rule applicable to the claims
in this case is, essentially, a “discovery” rule. In other words, to 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. In any event,
Plaintiffs’ allegations are insufficient to show that their injury was “inherently
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    Case: 14-20778     Document: 00513238362      Page: 16   Date Filed: 10/20/2015



                                   No. 14-20778
undiscoverable” as a matter of state law, and their discovery rule argument
thus fails.
       Plaintiffs’ fraudulent concealment argument is unavailing for similar
reasons. In Texas, defendants are estopped from relying on limitations if they
are “under a duty to make disclosure but fraudulently conceal[] the existence
of a cause of action from the party to whom it belongs.” Borderlon v. Peck, 661
S.W.2d 907, 908 (Tex. 1983). “The estoppel effect of fraudulent concealment
ends,” however, “when a party learns of facts, conditions, or circumstances
which would cause a reasonably prudent person to make inquiry, which, if
pursued, would lead to discovery of the concealed cause of action.” Id. at 909.
Here, nothing in Plaintiffs’ complaint suggests that HISD or School Officials
actively concealed the existence of any causes of action—rather, Plaintiffs’
allegations focus on the School Officials’ failure to act in the face of knowledge
of abuse. Additionally, for the same reasons that we have already concluded
Plaintiffs’ claims accrued by the spring of 2011, Plaintiffs had sufficient
knowledge of the relevant facts by that time to end any “estoppel effect” that
would otherwise apply. Thus, fraudulent concealment is of no help to Plaintiffs.
                                IV. CONCLUSION
      Because Plaintiffs’ Title IX and § 1983 claims accrued more than two
years prior to their filing suit and the equitable tolling principles they have
identified do not apply, we conclude that the claims are time-barred. We thus
need not reach the remaining issues raised on appeal, and we AFFIRM the
ruling of the district court.




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