     Case: 13-50940      Document: 00512727937         Page: 1    Date Filed: 08/08/2014




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

                                    No. 13-50940                                FILED
                                  Summary Calendar                         August 8, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
JOHN SHELBY,

                                                 Plaintiff-Appellant,
v.

CITY OF EL PASO, TEXAS; JOHN DOES 1–5,

                                                 Defendants-Appellees.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:12-CV-200


Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant John Shelby sued the City of El Paso, Texas (City) for
its involvement in the misreporting of Shelby’s criminal history over the last
seventeen years because of a mix-up with Shelby’s information and a felon’s
information. The district court dismissed the majority of Shelby’s claims,
denied Shelby leave to amend his complaint, and granted summary judgment




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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on the remaining claims. Shelby challenges various aspects of these decisions.
For the reasons discussed herein, we AFFIRM.
                       FACTS AND PROCEEDINGS
      In 1991, Shelby was arrested by the El Paso Police Department (EPPD)
and charged with criminal trespass. The charge was dismissed and Shelby
was released. However, the EPPD had recorded Shelby’s name and other
personal identifying information as part of Shelby’s arrest.
      Shelby’s employer, the Tigua Indian Reservation Casino, conducted a
background check on Shelby on December 1, 1997. This background check
indicated that Shelby was incarcerated in the El Paso County jail at the time
of the check. As a result, Shelby was fired. On December 2, 1997, Shelby
visited the EPPD Records Department and was shown pictures of the person
who had allegedly used his name. It was determined that this person was
Jason Newton and the EPPD Records Department assured Shelby that the
mix-up was fixed and the cause of it was unknown. Shelby was given a paper
that disclaimed any crimes committed by Newton as his.
      Shelby eventually obtained employment at the United States Post Office
in Suffolk, Virginia. However, on June 27, 2002, a background check conducted
by his employer again indicated that Shelby had a criminal record, including a
number of felony convictions.     He was fired for dishonesty and became
homeless as a result. Shelby subsequently took various jobs, but nothing that
required a background check. When he received an offer to manage a pizza
business, a background check was conducted revealing new convictions on his
record.
      Shelby called the EPPD Records Department repeatedly. He was put in
touch with Senior Latent Fingerprint Examiner, Mr. Bruce Orndorff. Orndorff
sent Shelby two letters, in 2005 and 2007, confirming that Shelby had not
committed the crimes identified as his.
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                                       No. 13-50940
       Eventually, an Assistant District Attorney attempted to expunge
Shelby’s record. When Shelby received paperwork related to this expunction
in January 2009, he determined that the EPPD had been responsible for
inserting his personal information from the 1991 arrest report into the arrest
records of Newton. Additional background checks performed by KTSM News
in 2010 and the Virginia Pilot Newspaper in 2011 continued to show Newton’s
felonies as associated and committed by Shelby.
       On May 29, 2012, Shelby filed this instant lawsuit against the City and
five unnamed John Does. 1 He alleged that the City’s actions constituted (1)
violations of the Fourteenth Amendment to the Constitution, entitling him to
relief under 42 U.S.C. § 1983, and (2) violations of the Equal Protection Clause
of the Texas Constitution. He also sought declaratory and injunctive relief
pursuant to 28 U.S.C. §§ 2201 & 2202. The City filed a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6), which the district court
referred to a Magistrate Judge for a Report and Recommendation. Shelby filed
objections to this Report and Recommendation. He also filed a motion for leave
to amend his complaint and add El Paso County (County) as a defendant.
       The district court rejected in part, modified in part, and adopted in part
this Report and Recommendation, dismissing Shelby’s § 1983 claims arising
out of alleged transmission made prior to 2010, Shelby’s Texas Constitution
claims, and declaratory/injunctive relief claims. The only claims remaining



       1 Shelby previously filed two similar lawsuits against the City of El Paso. In December
2010, Shelby filed suit in Texas state court, which the City removed to federal court. The
United States District Court for the Western District of Texas dismissed this case without
prejudice on March 31, 2011. See Shelby v. City of El Paso, No. EP-11-CV-17-PRM, 2011 WL
3666583 (W.D. Tex. Mar. 31, 2011). On July 29, 2011, Shelby filed another lawsuit in the
United States District Court for the Western District of Texas against the City, making
similar allegations. That case was also dismissed without prejudice on October 28, 2011. See
Shelby v. City of El Paso, No. EP-11-CV-315-PRM, 2011 WL 11740995 (W.D. Tex. Oct. 28,
2011). Shelby did not appeal these judgments.
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after this decision were Shelby’s § 1983 claims based on the transmission of
false information in 2010 and 2011 to the identified news agencies. In a
separate order, the district court also denied Shelby’s motion for leave to
amend his complaint. The district court concluded that Shelby’s motion, made
on April 16, 2013, was untimely given that the scheduling order gave Shelby
until December 28, 2012 to amend or supplement his pleadings. As such, the
district court assessed the motion under Federal Rule of Civil Procedure
16(b)(4) and denied the motion.
      The City subsequently moved for summary judgment on the remaining
claims. The district court granted the motion, concluding that there was no
genuine dispute of material fact.        The district court concluded that, as
demonstrated by the City, there was no evidence in Shelby’s complaint or in
the record identifying the City as the entity that transmitted any false or
defamatory information concerning Shelby to a third party. Further, the court
concluded that Shelby’s attempts to raise such a dispute were unavailing.
Shelby timely appealed.
                                  DISCUSSION
      Shelby appeals: (1) the district court’s decision to dismiss his § 1983
claims as time-barred; (2) the denial of leave to amend his complaint; and (3)
the district court’s summary judgment decision. 2 We address each of Shelby’s
arguments in turn. For the reasons discussed, we AFFIRM the district court
in all respects.
      A. Dismissal of § 1983 Claims
      We review the district court’s Rule 12(b)(6) dismissal of Shelby’s § 1983
claims de novo. Eckhardt v. Qualitest Pharm., Inc., 751 F.3d 674, 677 (5th Cir.



      2 Shelby does not appeal the dismissal of his Texas Constitution claims nor the
dismissal of his action for declaratory relief.
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                                  No. 13-50940
2014). “To survive a Rule 12(b)(6) motion, a plaintiff must plead enough facts
to state a claim for relief that is plausible on its face.” Id. “Well-pleaded facts
are viewed in the light most favorable to the plaintiff.” Simmons v. Sabine
River Authority La., 732 F.3d 469, 473 (5th Cir. 2013).
      The district court dismissed Shelby’s § 1983 claims based on the 1997
and 2002 disclosures as time-barred, applying the general two-year statute of
limitations governing personal injury claims in Texas.         Shelby argues on
appeal that because his claims arise under identity theft, which has no express
statute of limitations period under Texas law, the residual four-year statute of
limitations should apply. He also argues that our caselaw has departed from
the Supreme Court’s standard expressed in Owens v. Okure, 488 U.S. 235
(1989), for choosing the applicable statute of limitations. Shelby’s arguments
are unavailing.
      The Supreme Court in Wilson v. Garcia, stated that all § 1983 claims are
analogous to personal injury actions, and therefore, the state statute of
limitations applicable to personal injury actions applies to all § 1983 claims.
471 U.S. 261, 276–80 (1985), superseded by statute on other grounds, 28 U.S.C.
§ 1658(a); see also Garrett v. Thaler, No. 13-40599, 2014 WL 1282619, at *7
(5th Cir. April 1, 2014) (per curiam) (unpublished). The Supreme Court later,
in Owens, clarified 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. at
249–50. Accordingly, our cases have consistently held that “[t]he statute of
limitations for a suit brought under § 1983 is determined by the general statute
of limitations governing personal injuries in the forum state.” Piotrowski v.
City of Houston, 237 F.3d 567, 576 (5th Cir. 2001) (citing Pete v. Metcalfe, 8
F.3d 214, 217 (5th Cir. 1993)); see also Hernandez v. Tisdale, No. 13-50535,
2013 WL 6354176, at *1 (5th Cir. Dec. 6, 2013) (per curiam) (unpublished);
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Price v. City of San Antonio, 431 F.3d 890, 892 (5th Cir. 2005). In Texas, the
general statute of limitations for personal injury actions is two years. Tex. Civ.
Prac. & Rem. Code Ann. § 16.003(a); see also Burrell v. Newsome, 883 F.2d 416,
418 (5th Cir. 1989). Shelby’s argument that Texas’s four-year residual statute
of limitations for all other types of actions should apply seeks to re-characterize
his § 1983 claim as something other than what the Supreme Court has
characterized it as—a personal injury action. See Wilson, 471 U.S. at 279–80.
Therefore, Shelby’s argument fails.
      Shelby argues that, in any event, the statute of limitations should be
“tolled based on the discovery rule, which encompasses fraudulent
concealment.”      Because Shelby failed to object to the Report and
Recommendation with this argument, our review is only for plain error.
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996)
(en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1). We
conclude that there has been no error here.
      As an initial matter, Shelby’s argument confuses tolling and accrual
rules for statute of limitations. The distinction is important because “[w]hile
the limitations period is determined by reference to state law, the standard
governing the accrual of a cause of action under section 1983 is determined by
federal law.” Burrell, 883 F.2d at 418; see also Walker v. Epps, 550 F.3d 407,
414 (5th Cir. 2008) (“We determine the accrual date of a § 1983 action by
reference to federal law.”).    The discovery rule is an accrual rule for the
applicable statute of limitations—not a tolling rule—and simply defers the
accrual of a cause of action. See Computer Assocs. Int’l, Inc. v. Altai, Inc., 918
S.W.2d 453, 455 (Tex. 1996) (“The discovery rule exception defers accrual of a
cause of action until the plaintiff knew or, exercising reasonable diligence
should have known of the facts giving rise to the cause of action.”).


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      The standard in § 1983 actions provides “that the time for accrual is
when the plaintiff knows or has reason to know of the injury which is the basis
of the action.” Burrell, 883 F.2d at 418 (internal quotation marks omitted); see
also Walker, 550 F.3d at 414 (“As we ourselves have stated, 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.’”). This standard is in fact the discovery rule that Shelby seeks to
apply; however, it is of no help to Shelby.      Shelby, according to his own
pleadings, knew of or had reason to know of the facts giving rise to his injury
based on EPPD’s actions in 1997 and 2002 in January of 2009. Thus, he had
two years from January 2009 to file suit. He filed this action on May 29, 2012,
well outside of that two-year period for the claims based on the EPPD’s actions
in 1997 and 2002.
      To the extent Shelby invokes the doctrine of fraudulent concealment
under Texas law, the result is the same.        Fraudulent concealment is an
equitable tolling rule under Texas law. See Shell Oil Co. v. Ross, 356 S.W.3d
924, 927 (Tex. 2011) (“[F]raudulent concealment[] is an equitable doctrine that
is fact-specific. Fraudulent concealment tolls limitations ‘because a person
cannot be permitted to avoid liability for his actions by deceitfully concealing
wrongdoing until limitations has run.’” (citation omitted)). Therefore, it is
applicable to a § 1983 claim. See Gartrell v. Gaylor, 981 F.2d 254, 257 (5th Cir.
1993) (per curiam) (“In applying the forum state’s statute of limitations, the
federal court should also give effect to any applicable tolling provisions.”).
However, any alleged fraudulent concealment was revealed to Shelby in 2009




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                                        No. 13-50940
when he obtained the paperwork related the expunction.                     The district court
correctly determined that his claims were time-barred. 3
       B. Denial of Leave to Amend
       We review for abuse of discretion the district court’s denial of leave to
amend. Crostley v. Lamar Cnty., Tex., 717 F.3d 410, 420 (5th Cir. 2013). “A
district court possesses broad discretion in its decision whether to permit
amended complaints.” Id. Where, as here, the party’s amendment is sought
after a scheduling order’s deadline to amend expires, Federal Rule of Civil
Procedure 16(b) governs. Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344,
348 (5th Cir. 2008) (citing S&W Enters. LLC v. Southtrust Bank of Ala., NA,
315 F.3d 533, 535 (5th Cir. 2003)). Accordingly, a party “must show good cause
for not meeting the deadline before the more liberal standard of Rule 15(a) will
apply to the district court’s denial of leave to amend.” Id. (internal quotation
marks omitted).        There are four factors that are relevant to determining
whether a party has shown good cause: “(1) the explanation for the failure to
timely move for leave to amend; (2) the importance of the amendment; (3)
potential prejudice in allowing the amendment; and (4) the availability of a
continuance to cure such prejudice.” Id. (internal quotation marks omitted).
       The district court determined that Shelby failed to demonstrate good
cause. Specifically, Shelby provided an inadequate explanation for his failure
to meet the deadline and did not explain how the County’s involvement in the
booking process in 1991 related to his remaining § 1983 claims. Further, the
County would be prejudiced by the amendment, and granting a continuance
would be an unsatisfactory remedy for this prejudice.                    On appeal, Shelby
asserts that he did not discover the County’s involvement in the booking


       3 Shelby also argued to the district court that the statute of limitations should be tolled
based on the continuing tort doctrine, which the district court rejected. He does not challenge
this determination on appeal.
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process until discussions with the City’s counsel that occurred after the
deadline to amend had passed. We agree with the district court that this is an
inadequate explanation for his failure to meet the deadline. Shelby had more
than two decades from the booking to assess the parties involved. Moreover,
his own complaint includes an exhibit which plainly indicated that the booking
and arrest records were from the County.
      C. Summary Judgment
      We review a grant of summary judgment de novo, applying the same
standards as the district court. Tiblier v. Dlabal, 743 F.3d 1004, 1006 (5th Cir.
2014). “Summary judgment is proper if there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a matter of law.”
Royal v. CCC & R Tres Arboles, LLC, 736 F.3d 396, 400 (5th Cir. 2013) (citing
Fed. R. Civ. P. 56(a)). “A genuine dispute of material fact means that evidence
is such that a reasonable jury could return a verdict for the nonmoving party.”
Id. (internal quotation marks omitted). We must view the evidence “in the
light most favorable to the nonmovant.” Id.
      The district court concluded that summary judgment was proper because
there was no evidence in the record demonstrating that the City was
responsible for any transmission of false information to the identified news
agencies in 2010 and 2011. Shelby argues on appeal that he “produced a very
clear piece of fact-raising evidence”—namely, the 1997 AFIS report. 4 This
document includes Shelby’s name, his personal identifying information, and a




      4  Shelby made arguments based on three other documents included in the record to
the district court, but he has abandoned these claims on appeal.
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physical description of Newton. Shelby argues that this demonstrates that the
City did make reports regarding Shelby’s criminal history.
      Shelby’s arguments are again unavailing. The 1997 AFIS report is not
relevant to his 2010 and 2011 claims against the City. At best, it demonstrates
that in 1997 the City reported information confusing Shelby with Newton to
the Federal Bureau of Investigation’s database. The district court properly
granted summary judgment to the City on these claims.
                               CONCLUSION
      For the aforementioned reasons, we AFFIRM the district court’s rulings
on Shelby’s § 1983 claims and denial of leave to amend after the deadline had
passed.




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