     Case: 09-40940     Document: 00511249877          Page: 1    Date Filed: 09/30/2010




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

                                                  FILED
                                                                        September 30, 2010

                                     No. 09-40940                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



CYNTHIA BROCKMAN, as Representative for Christopher Anson Brockman
(Deceased),

                                                   Plaintiff-Appellant

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; UNIVERSITY OF TEXAS
MEDICAL BRANCH; CHARLOTTE ANNETTE BUSSEY, RN,

                                                   Defendants-Appellees




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                             USDC No. 6:08-CV-00006


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Cynthia Brockman, representative of her deceased son Christopher
Brockman, appeals from the district court’s dismissal of her claims against the
Texas Department of Criminal Justice (“TDCJ”), the University of Texas Medical
Branch (“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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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

claims are without merit, we affirm the district court’s dismissal of this case.
                                         I.
        On January 5, 2006, Christopher Brockman hung himself while
incarcerated at the Michael Unit of the TDCJ.         Prior to his incarceration,
Christopher had been diagnosed with bipolar disorder, for which he received
treatment of varying efficacy as an inmate. Approximately two years after
Christopher’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
employees Kay McMurtry and Ronny Hill, and nurse Charlotte Anne Bussey.
Brockman argued that the defendants had been deliberately indifferent to her
son’s condition during his incarceration, violating the Eighth Amendment. U.S.
Const. amend. VIII. She also filed suit under Title II of the Americans with
Disabilities Act (“ADA”), asserting that the defendants’ treatment of her son’s
condition violated the ADA. 42 U.S.C. § 12132 (2006).
        Brockman asserts that during Christopher’s incarceration, prison officials
frequently 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
was confiscated, causing manic episodes.       She asserts that prison officials
sometimes withheld       medications that had       been   effective at    treating
Christopher’s bipolar disorder, like lamictal, fish oil supplements, and vitamin
E.    She alleges that instead of these medications, prison officials provided
Christopher with ineffective medications with extreme side effects.
        Beyond these general allegations, Brockman also points to several specific
instances of the defendants’ alleged failure to treat Christopher’s bipolar
disorder. Brockman alleges that in 2003, while Christopher was being held at
Michael Unit, defendant Warden Thompson prevented him from receiving fish
oil supplements. She also alleges that upon Christopher’s transfer to Ferguson
Unit in 2004, defendant Bussey evaluated Christopher’s mental health and

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incorrectly concluded that he was not suffering from any mental impairment,
ignoring his medical records and the clear signs of his bipolar disorder.
Furthermore, Brockman claims that in late 2005, UTMB employees—specifically
defendants McMurtry and Hill—missed clear evidence that Christopher’s mental
health was deteriorating and that he was a suicide risk. Specifically, she alleges
that on December 1, 2005, approximately a month before Christopher’s suicide,
McMurtry determined that he was a low suicide risk and that he was merely
“drug seeking.”     Brockman also alleges that Hill dared Christopher to kill
himself, but in her complaint she does not specify the date this allegedly
occurred.
      Despite the allegedly clear evidence that Christopher was suicidal and
delusional by late 2005, Brockman claims that when Christopher killed himself
on January 5, 2006, he was being held in isolation. She points out that this
would have been a violation of the standards issued by National Commission on
Correctional Health Care (“NCCHC”), which direct that suicidal prisoners not
be housed in isolation, unless under constant supervision. Brockman alleges
that prison officials did not closely monitor Christopher before his suicide and
that log entries showing the contrary were fabricated. She asserts that when
Christopher’s body was found, blood had already begun to pool in his lower body,
indicating that a fair amount of time had passed since his suicide.
      The district court assigned this case to a magistrate. After several of the
defendants filed motions to dismiss pursuant to Rule 12(b)(6), the magistrate
recommended dismissing Brockman’s claims. The magistrate concluded that
sovereign immunity defeated Brockman’s § 1983 claims against the TDCJ, the
UTMB, and the individual defendants in their official capacities. The magistrate
also concluded that any claims based on conduct before the two-year limitations
period for § 1983 and ADA actions were time-barred. Thus, the magistrate
found that all of Brockman’s § 1983 claims against the individual defendants in

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their personal capacities were time-barred, since all of the allegations of specific
misconduct occurred before January 4, 2006. The magistrate also found that
Brockman’s ADA claims could not succeed, as she had not pleaded enough facts
regarding Christopher’s treatment on or after January 4, 2006 to show a
plausible entitlement to relief. After de novo review, the district court adopted
the magistrate’s recommendation in full, over Brockman’s objection.1
                                             II.
       “This court reviews 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.” Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338
(5th Cir. 2008) (internal quotation marks omitted). “Factual allegations must
be enough to raise a right to relief above the speculative level . . . .” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009) (quoting Twombly, 550 U.S. at 570).
       On this appeal, Brockman does not dispute that her § 1983 claims against
the institutional defendants and the individual defendants in their official
capacities are blocked by sovereign immunity. However, she asserts that the
district court misinterpreted the statute of limitations for § 1983 and ADA
claims, unduly restricting the scope of the allegations that could be considered


       1
          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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to validate her claims. She also argues that the district court improperly refused
to 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
and that Brockman’s timely claims must fail. We also find that Brockman need
not be provided an opportunity to amend her complaint. Consequently, we
affirm the district court’s dismissal of this case.
                                         A.
      “We review de novo . . . questions of law, such as whether the statute of
limitations has run or whether equitable tolling applies.” Newby v. Enron Corp.,
542 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
are time-barred. However, we find that the court below correctly applied the
statute of limitations to the facts of this case.
      Since there is no federal statute of limitations for ADA or § 1983 claims,
we look to the general personal injury limitations period provided by the forum
state, which in this case is Texas’s two-year limitations period. See Tex. Civ.
Prac. & Rem. Code Ann. § 16.003(a); Owens v. Okure, 488 U.S. 235, 249-50
(1989) (§ 1983); Frame v. City of Arlington, — F.3d —, 2010 WL 3292980, at *8
(5th Cir. 2010) (ADA). Brockman argues that the Texas cause of action most
closely analogous to her claims is a wrongful death action, and she asserts that
we should therefore apply its two-year limitations period, for which a cause of
action “accrues on the death of the injured person.” Tex. Civ. Prac. & Rem. Code
Ann. § 16.003(b). Under this approach, she asserts, all her claims would be
timely, as she filed her lawsuit within two years of Christopher’s death.
      The Supreme Court, however, has rejected the notion that we should look
to the specifics of a particular § 1983 claim to determine the statute of
limitations to apply.     Instead, the Court has created a bright line rule,
mandating that “courts considering § 1983 claims should borrow the general or

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residual statute for personal injury actions.” Owens, 488 U.S. at 249. In any
event, in both the § 1983 and ADA contexts, we have held that even if state law
provides the underlying limitations period, federal law establishes the date upon
which claims accrue, which is “‘when the plaintiff knows or has reason to know
of the injury which is the basis of the action.’” Jackson v. Johnson, 950 F.2d 263,
265 (5th Cir. 1992) (quoting Lavallee v. Listi, 611 F.2d 1129, 1131 (5th Cir.
1980)); see also Frame, 2010 WL 3292980, at *9. Since Christopher should have
known the quality of the treatment he was receiving for his bipolar disorder
before January 4, 2006, the district court correctly concluded that all claims
based on conduct preceding January 4, 2006 are time-barred.
       In response, Brockman contends that we should apply Texas’s “unsound
minds” tolling rule, which she asserts would toll the statute of limitations for
Christopher due to his bipolar disorder and render her claims timely. See Tex.
Civ. Prac. & Rem. Code Ann. § 16.001. However, Brockman failed to raise this
argument 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
not raised before the district court cannot be asserted for the first time on
appeal.’” (quoting XL Specialty Ins. Co. v. Kiewit Offshore Servs., Ltd., 513 F.3d
146, 153 (5th Cir. 2008))).
       Therefore, we may only consider Brockman’s allegations concerning
Christopher’s treatment on or after January 4, 2006. On the basis of these
allegations alone, Brockman’s § 1983 and ADA claims must fail.                      First,
Brockman’s § 1983 claims are time-barred.              All of Brockman’s allegations
concerning the individual defendants—Thompson, Bussey, McMurtry, and
Hill—relate to conduct that occurred before January 4, 2006. 2               Second, for


      2
         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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Brockman’s ADA claims, all claims that are based on conduct before January 4,
2006 are also barred. Her only specific allegations involving conduct on or after
January 4, 2006 concern the failure of prison officials to adequately monitor
Christopher pursuant to NCCHC standards.             However, on this appeal,
Brockman has not provided any briefing concerning the failure of the defendants
to follow NCCHC standards. Furthermore, Brockman has also failed to provide
any briefing concerning the elements of an ADA claim or how her allegations
satisfy those elements, other than a lone conclusory statement that Christopher
was 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,
Brockman’s ADA and § 1983 claims are either untimely or have been waived on
this appeal.
                                       B.
      Brockman also asserts that the district court erred in failing to allow her
to amend her complaint. After the magistrate recommended dismissing this
case, Brockman filed an objection to the magistrate’s report with the district
court, providing a supplemented list of allegations and asking the court for leave
to replead the facts in her complaint. The district court did not explicitly deny
Brockman’s request, but implicitly did so, as it adopted the magistrate’s report
and dismissed this case. Generally, district courts should “freely give leave” for
plaintiffs to amend their complaints “when justice so requires.” Fed. R. Civ. P.
15(a)(2). We review a district court’s denial of a motion to amend a complaint
for abuse of discretion. See Forman v. Davis, 371 U.S. 178, 182 (1962).
      The district court did not abuse its discretion in failing to grant
Brockman’s request to amend her pleadings. We have previously held that a
refusal to allow amendment is not an abuse of discretion when the proposed
amendment would be futile. See Avatar Exploration, Inc. v. Chevron, USA, Inc.,
933 F.2d 314, 321 (5th Cir. 1991).          In Brockman’s objection, all of her

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supplemental allegations concerned events that occurred prior to January 4,
2006. As such, granting leave to amend the complaint with these allegations
would be futile, as any claims based on them would be time-barred.
Furthermore, to the extent Brockman was requesting leave to amend her
complaint to add allegations concerning events on or after January 4, 2006,
refusal of this request also would not have been an abuse of discretion. We have
held that a “bare request in an opposition to a motion to dismiss—without any
indication of the particular grounds on which the amendment is sought—does
not 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,
387 (5th Cir. 2003) (quoting Confederate Mem’l Ass’n, Inc. v. Hines, 995 F.2d 295,
299 (D.C. Cir. 1993)). Since Brockman did not provide any indication of what
allegations concerning the defendants’ conduct during the limitations period she
would have added to her complaint, the district court did not abuse its discretion
in refusing her request for leave to amend.
                                       C.
      The United States filed a motion to intervene in this case for the purpose
of defending the constitutionality of Title II of the ADA’s abrogation of state
sovereign immunity. In United States v. Georgia, the Supreme Court held that
when courts consider Title II claims, they should first address whether the
conduct challenged by the plaintiff violates Title II, then resolve whether this
conduct also violates the Fourteenth Amendment, and finally, if Title II is
violated but not the Fourteenth Amendment, address whether Title II validly
abrogates sovereign immunity in these circumstances. 546 U.S. 151, 159 (2006).
The purpose of this rule is to prevent courts from unnecessarily addressing the
constitutional issue of whether the ADA may validly abrogate sovereign
immunity in the absence of a violation of the Fourteenth Amendment.
      In this case, the United States argues that the district court failed to

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follow Georgia properly. Indeed, the magistrate’s report and recommendation,
adopted in full by the district court, seems to have violated the order of
operations established by Georgia. The magistrate’s report did not explicitly
determine whether a violation of Title II took place. Instead, it found that
Brockman had failed to demonstrate any Eighth Amendment violation and that
consequently she had “not alleged facts abrogating UTMB and TDCJ’s sovereign
immunity with respect to her ADA claims.” As such, the opinion below could be
read to establish implicitly that the ADA may only abrogate sovereign immunity
when accompanied by a violation of the Fourteenth Amendment. We note that
this error is understandable, since Brockman’s claims may be more readily
characterized as Eighth Amendment deliberate indifference claims than ADA
claims.
      Previously, when lower courts have unnecessarily reached issues
concerning the constitutionality of the ADA’s abrogation of sovereign immunity,
the 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
Servs., 313 F. App’x 843, 847-48 (6th Cir. 2009). Because we conclude on appeal
that Brockman’s ADA claims are either untimely or have been waived, we
VACATE the portions of the opinion below which concern the abrogation of
sovereign immunity under the ADA. Accordingly, the motion to intervene is
denied as moot.
                                     III.
      Consequently, we AFFIRM the district court’s dismissal of this case in
part and VACATE the portions of the district court’s opinion which concern
the abrogation of sovereign immunity under the ADA. The motion to
intervene is DENIED as MOOT.




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