     Case: 15-40838       Document: 00513545792         Page: 1     Date Filed: 06/13/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                               United States Court of Appeals
                                                                                        Fifth Circuit
                                       No. 15-40838                                   FILED
                                                                                  June 13, 2016

JANE DOE; ADAN JALOMO; MARIA P. JALOMO,                                          Lyle W. Cayce
                                                                                      Clerk
               Plaintiffs - Appellants

v.

CITY OF PHARR, TEXAS; PHARR POLICE DEPARTMENT; RUBEN
VILLESCAS,

               Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:14-CV-285


Before SMITH, BARKSDALE, and COSTA, Circuit Judges.
PER CURIAM:*
       This appeal is from a judgment pursuant to Federal Rule of Civil
Procedure 54(b) (entry of final judgment for fewer than all claims or parties in
an action), through which, after a very tortured procedural history involving
several amended complaints and various related motions, the claims against
three of the four defendants were dismissed under Rule 12(b)(6) (failure to


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 15-40838
state a claim). Proceeding, inter alia, pursuant to 42 U.S.C. § 1983, the claims
by Jane Doe and her parents, Adan and Maria Jalomo, arise out of a police
officer’s allegedly sexually assaulting Jane Doe.      At issue are, inter alia:
whether appellants gave proper notice of their appeal, pursuant to Federal
Rule of Appellate Procedure 3; and, if so, whether a cognizable claim was
pleaded. AFFIRMED.
                                        I.
      Appellants filed this action in May 2014 against the City of Pharr, Texas;
its police department; its police chief, Ruben Villescas; and Erasmo Mata, then
a police officer for the city. Appellants alleged, inter alia: Mata, on five
occasions between July and October 2013, sexually assaulted Jane Doe, then a
minor; he committed these acts “during [his] working hours”; other officers
“would stand watch”; and, although Mata and the other officers were
terminated, “[n]othing was ever done to any of” them after an investigation
was conducted.
      Relying upon 42 U.S.C. §§ 1983 (civil action for deprivation of civil
rights), 1985(3) (civil action for conspiracy to deprive individuals of rights or
privileges), & 1986 (civil action for neglecting to prevent violations of § 1985),
they maintained the city and its police department denied Jane Doe “due
process, equal protection, and the privileges and immunities of citizenship”.
They also presented state-law claims for: negligent and intentional infliction
of emotional distress; conspiracy; negligence; intimidation; fraud; and
constructive fraud.
      Mata, to whom the Rule 54(b) judgment does not apply, moved to dismiss
on the basis of official and qualified immunity, and for failure to state a claim.
But, before the court ruled, appellants filed two amended complaints on 10
June 2014.     Appellees and Mata moved to dismiss the second-amended
complaint.
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                                  No. 15-40838
      On 13 August 2014, the city’s and Chief Villescas’ motions were granted:
the intentional-tort claims were dismissed with prejudice; the §§ 1983, 1985(3),
and 1986, and negligence claims, without prejudice. The relief accorded the
city included its police department and its employees in their official capacities:
the court considered claims made against them to be claims against the city
because it was “the proper entity with capacity to sue and be sued”. Order,
Jane Doe v. City of Pharr, No. 7:14-CV-285, at 3 (S.D. Tex. 13 Aug. 2014).
      In dismissing, without prejudice, the federal-law claims, the court
concluded appellants’ apparent assertion the city (and Chief Villescas)
maintained a “policy of mishandling evidence . . . to prevent the prosecution of
officers who commit crimes” did not constitute a deprivation of a constitutional
right, as required to proceed under § 1983. Id. at 4. Additionally, it ruled the
§ 1985(3) claim failed to allege a race-based conspiracy; consequently, the
§ 1986 claim could not stand. Id. at 5–6.
      Regarding appellants’ intentional-tort claims’ being dismissed with
prejudice against all defendants but Mata, the court held the city was entitled
to sovereign immunity provided to the State and its political subdivisions
under the Texas Tort Claims Act (TTCA); likewise, because the city had moved
for Chief Villescas’ dismissal under the TTCA, it was granted for him. Id. at
6, 9. On the other hand, Mata’s motion to dismiss the intentional-tort claims
against him was denied because, at that point in the action, he had not shown
he was entitled to dismissal under the TTCA. Id. at 9.
      Appellants’ negligence claims against the city were dismissed, without
prejudice, for failure to allege: “Mata’s use of [city-issued] property caused
Jane Doe’s injury”; and the city “knew, or had reason to know, of Mata’s
incompetency to use the property”. Id. at 11.
      Upon the appellants’ motion, opposed by the city and Chief Villescas, the
court granted leave to amend the claims against the city, but, citing futility,
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not against Chief Villescas. (It again considered the claims against the police
department as also being against the city.) The subsequent third-amended
complaint against the city and Mata (in his official capacity) was dismissed for
failure to state a claim on 19 February 2015. Order Granting Defendants’
Motion to Dismiss, Jane Doe v. City of Pharr, No. 7:14-CV-285 (S.D. Tex. 19
Feb. 2015).
      In dismissing the third-amended complaint, the court first considered
the claims against the city. Citing its previous dismissal, it again addressed
the intentional-tort claims, primarily because it had not ruled previously on
the one for intimidation (which the court construed as a claim for assault).
Likewise, for the negligence claims, the court held:      assuming appellants
sufficiently pleaded causation, they failed to allege the city knew, or should
have known, that Mata did, or would, incompetently use city-issued property;
therefore, that claim was also dismissed.
      For the § 1983-related claims, the court held appellants failed to assert
violations of a constitutionally-protected right because: alleging Mata was not
investigated and prosecuted did not constitute such a right; and they pleaded
no “facts that would allow for a reasonable inference that a City official acted
with deliberate indifference” in supervision or in screening and hiring. Id. at
9. Similarly, the court concluded the § 1985(3) claim failed because, “accepting
all the well-pleaded facts as true”, appellants did not allege the purported
conspiracy not to discipline Mata injured Jane Doe “in [her] person or property
or deprived [her] of having and exercising any right or privilege of a citizen of
the United States”. Id. at 11. (quoting Horaist v. Doctor’s Hosp. of Opelousas,
255 F.3d 261, 270 n.12 (5th Cir. 2001) (interpreting § 1985(3)). Again, because
the § 1985 claim was dismissed, the § 1986 claim was also dismissed.




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                                 No. 15-40838
      And, the court agreed with Mata that the claims against him in his
official capacity were redundant of the claims against the city. Therefore, they
were dismissed.
      Moreover, because Jane Doe had reached majority and no allegations
supported a lack of capacity, the court concluded: Adan and Maria Jalomo, in
their representative capacities, should also be dismissed for lack of standing;
and they had not stated any claims in their individual capacities.
      Finally, ruling appellants had not pled additional relevant facts in their
third-amended complaint, and their claims having already been dismissed
once, the court concluded it would be futile to allow further amendments for
claims against the city and Mata in his official capacity. On the other hand,
the court ruled it would not be futile for appellants to amend any claims they
wished to assert against Mata in his individual capacity. Id. at 13–15.
      Following dismissal of the city and Mata in his official capacity,
appellants filed a motion to correct on 20 February, asserting that, at a hearing
on 13 February, six days prior to the order of dismissal, the court granted them
leave to amend their complaint against the city. In denying the motion on 24
February, the court confirmed it had: denied leave to amend claims against
the city; and granted leave to amend only claims against Mata in his individual
capacity. Order, Jane Doe v. City of Pharr, No. 7:14-CV-285 (S.D. Tex. 24 Feb.
2015).
      Appellants moved for reconsideration of the dismissal, asserting the
police department’s being named as defendant in several actions (none of
which had been filed recently) proved it had a policy and practice of violating
individuals’ constitutional rights.   On 1 June 2015, that motion was also
denied. Order Denying Plaintiffs’ Motion to Reconsider, Jane Doe v. City of
Pharr, No. 7:14-CV-285 (S.D. Tex. 1 June 2015).


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                                  No. 15-40838
      Upon the city, police department, and Chief Villescas’ motion, the court
entered the Rule 54(b) judgment on 9 June 2015, dismissing with prejudice the
claims against the city, its police department, and Chief Villescas (collectively
referred to in the judgment as “the City Defendants”). In other words, as
discussed, the final judgment regarding appellants’ “claims against the [three]
City Defendants” did not include claims against Mata (“Plaintiffs’ claims
against Mata remain pending before the Court.”). Final Judgment as to Claims
Against The City Defendants, Jane Doe v. City of Pharr, No. 7:14-CV-285 (S.D.
Tex. 9 June 2015).
      Eight days after entry of final judgment, appellants filed the now-
contested notice of appeal. Below a case caption listing as defendants the city,
its police department, Chief Villescas, and Mata, the entire text of the notice
reads: “NOW COMES, Plaintiffs, and files their notice of appeal in cause
number 7:14-cv-00285 in reference to the Defendant, City of Pharr”.
                                        II.
      In addition to maintaining their third-amended complaint states claims
sufficient to preclude the Rule 12(b)(6) dismissal, appellants present two other
independent bases for vacating the dismissal:         their motion to reconsider
should have been granted; and, instead of entering the Rule 54(b) judgment for
the three “City Defendants”, the court should have permitted appellants to file
a fourth-amended complaint. Besides disputing these contentions, appellees
claim consideration of this appeal is precluded because the notice of appeal is
fatally deficient.
                                        A.
      The notice is challenged for failure to name: the judgment or orders from
which, and some of the parties against whom, the appeal is taken. For a notice
to be sufficient, the following items must be provided: “the party or parties
taking the appeal . . . in the caption or body of the notice”; “the judgment, order,
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                                  No. 15-40838
or part thereof being appealed”; and “the court to which the appeal is taken”.
Fed. R. App. P. 3(c)(1); see also Kinsley v. Lakeview Reg’l Med. Ctr. LLC, 570
F.3d 586, 589 (5th Cir. 2009). These minimum requirements exist “to ensure
that the filing provides sufficient notice to other parties and the courts” of the
issues on appeal. Smith v. Barry, 502 U.S. 244, 248 (1992); see also R.P. ex rel.
R.P. v. Alamo Heights Indep. Sch. Dist., 703 F.3d 801, 808 (5th Cir. 2012).
Therefore, “the notice afforded by a document, not the litigant’s motivation in
filing it, determines the document’s sufficiency as a notice of appeal”. Smith,
502 U.S. at 248.
      In that regard, notices of appeal are given liberal treatment when “the
intent to appeal an unmentioned . . . ruling is apparent and there is no
prejudice to the adverse party”. R.P., 703 F.3d at 808; see also Bailey v. Cain,
609 F.3d 763, 765 (5th Cir. 2010) (notice is sufficient where “the substance of
the document . . . evinces an intent to appeal”). Although the “principle of
liberal construction does not . . . excuse noncompliance with [ ] Rule [3]”,
Smith, 502 U.S. at 248, “[a]n appeal must not be dismissed for informality of
form or title of the notice of appeal, or for failure to name a party whose intent
to appeal is otherwise clear from the notice”. Fed. R. App. P. 3(c)(4).
      Appellants’ intent to appeal is clear from the title (“Notice of Appeal”)
and short body of the notice. Appellees maintain it is fatally defective for
failing to name the orders or judgment from which appellants appeal; and their
naming only the city as appellee (“in reference to the Defendant, City of
Pharr”).
      The first claimed deficiency is a requirement under Rule 3; the second is
not; but, our court has held that, “if a party names some but not all defendants,
the unnamed defendants are excluded” from the appeal. Williams v. Henagan,
595 F.3d 610, 616 (5th Cir. 2010). And, although the notice also fails to state
the court to which the appeal is taken, as required under Rule 3, that error is
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                                  No. 15-40838
not fatal when, as here, “this is the only court to which [an appellant] could
appeal”. United States v. Cantwell, 470 F.3d 1087, 1089 (5th Cir. 2006).
      As noted, in the notice of appeal only the city was named as a party
against which the appeal is taken. Therefore, appellees contend, at minimum,
the police department and Chief Villescas did not receive notice. (Moreover,
based on appellants’ opening brief, it was unclear whether they included Mata
as an appellee. In any event, following the filing of appellees’ response brief,
appellants clarified in a letter to the clerk of this court that Mata is not a party
to this appeal. Chief Villescas and the police department thus remained as
appellees named in the briefs, but not in the notice.
      Nevertheless, appellants’      contentions regarding, inter        alia,   the
dismissal, denial of the motion to reconsider, and entry of the Rule 54(b)
judgment were presented adequately in appellants’ opening brief such that the
city, its police department, and Chief Villescas were able to address them in
their response brief. Liberally construing the notice of appeal, as required by
our precedent, to include the district court’s decisions addressed in appellants’
opening brief therefore does not prejudice Chief Villescas and the police
department. See, e.g., Williams, 595 F.3d at 616 (“[W]e generously interpret
the scope of the appeal, and require a showing of prejudice to preclude review
of issues fairly inferred from the notice and subsequent filings”. (internal
quotation marks omitted)).
      Regardless, the district court had combined Chief Villescas and the
police department with the city as the “City Defendants”; as noted, in, inter
alia, the Rule 54(b) judgment, appellants’ claims against Chief Villescas and
the police department are redundant of the claims against the city; and, as
discussed infra, they fail. In short, although deficient in several respects, the
notice of appeal is sufficient.


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                                 No. 15-40838
                                        B.
      The dismissal is challenged on three independent bases. Each fails.
                                        1.
      In contesting the denial of their motion to reconsider, in which
appellants claimed the attached complaints against, and Internet news articles
about, the city showed a pattern of civil-rights violations, appellants contend
the court erred in concluding they did not submit “newly discovered evidence”.
The denial of a motion to reconsider is reviewed for abuse of discretion. See,
e.g., Templet v. HydroChem Inc., 367 F.3d 473, 477 (5th Cir. 2004). “Under
this standard of review, the district court’s decision and decision-making
process need only be reasonable.” Id.
      The supporting attachments consisted of copies of complaints filed
against the city from 2005, 2007, and 2010 (this action was filed in 2014), in
addition to copies of Internet news articles concerning Pharr police officers
from between June 2008 and February 2015. Without determining whether
the documents supported a claim against the city, the court concluded
appellants had not exercised the required due diligence to discover them before
the action was dismissed. Order Denying Plaintiffs’ Motion to Reconsider, at
2. As the court noted, the only item that could be considered newly-discovered
evidence was an article from February 2015, concerning the police
department’s failure rate on promotion exams, which would not have changed
the outcome. See, e.g., Infusion Res., Inc. v. Minimed, Inc., 351 F.3d 688, 697
(5th Cir. 2003). Therefore, under our deferential standard of review, the denial
of the motion to reconsider was not an abuse of discretion.
                                        2.
      Appellants next contest the entry of final judgment, claiming that,
instead, they should have been allowed to amend their complaint again—for
the fourth time. The decision to enter final judgment “is left to the sound
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judicial discretion of the district court to determine the ‘appropriate time’ when
each final decision in a multiple claims action is ready for appeal”. Brown v.
Miss. Valley State Univ., 311 F.3d 328, 332 (5th Cir. 2002) (quoting Curtiss-
Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1980)). Therefore, the decision to
enter final judgment under Rule 54(b) is reviewed for abuse of discretion,
Ackerman v. F.D.I.C., 973 F.2d 1221, 1224 (5th Cir. 1992), as is the denial of
leave to amend a complaint, Mayeaux v. La. Health Serv. & Indem. Co., 376
F.3d 420, 425 (5th Cir. 2004) (requiring, for denial, a “‘substantial reason’ such
as undue delay, bad faith, dilatory motive, repeated failures to cure
deficiencies, or undue prejudice to the opposing party”).
      In their opening brief, appellants contend the claimed newly-discovered
evidence presented in their motion to reconsider, purportedly showing a
pattern and practice of discrimination and hiring and training practices by the
city and its officials that resulted in the violation of Jane Doe’s constitutional
rights, supports their assertion that final judgment should not have been
entered.   Moreover, they maintain discovery would have illuminated the
practices of the city and police officers that led to Mata’s violation of Jane Doe’s
rights.
      Appellants amended their complaint three times. In each instance, they
failed to correct its deficiencies. The refusal to allow another amendment was
not an abuse of discretion.
                                         3.
      Finally, underlying each of the appellants’ assertions is their challenge
to the court’s dismissal of all of their claims, except those against Mata in his
individual capacity. Dismissal under Rule 12(b)(6) for failure to state a claim




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                                 No. 15-40838
is reviewed de novo. E.g., United States ex rel. Doe v. Dow Chem. Co., 343 F.3d
325, 328 (5th Cir. 2003).
      Appellants assert Mata committed multiple acts of sexual assault
against Jane Doe, and, in response, the city “acted with deliberate indifference”
and followed supervisory policies inadequate to prevent Mata’s actions.
Appellants therefore claim: they “sufficiently stated claims of violation of
constitutional rights”; and the city is liable for the acts of its employees.
Furthermore, they allege the sexual assaults were motivated by Jane Doe’s
racial-minority status. They also maintain the city had improper policies and
practices of: withholding information, tampering with evidence, conducting
investigations of officers accused of misconduct, removing employees,
screening new applicants, and training. Moreover, they appear to contend the
city, the police department, and its employees conspired to allow Mata to
violate Jane Doe’s rights. Finally, appellants contend Chief Villescas was the
policymaker for each of the alleged inadequate practices, and failed to take
action after learning of Mata’s alleged misconduct.
      Beyond those conclusory assertions, appellants present no facts or law
in support of their claims in their third-amended complaint. Pursuant to our
de novo review, and having considered the briefs, the pertinent parts of the
record, and the applicable law, and essentially for the reasons stated in the
district court’s comprehensive and well-reasoned orders dated 13 August 2014,
and 19 and 24 February and 1 June 2015, as well as its 9 June 2015 Rule 54(b)
judgment, appellants fail to state a claim against the three defendants
dismissed by the judgment: the city, its police department, and Chief Villescas.
                                      III.
      For the foregoing reasons, the Rule 54(b) judgment is AFFIRMED.




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