     Case: 13-41307      Document: 00513015635         Page: 1    Date Filed: 04/22/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-41307
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            April 22, 2015
JIMMY DON MATHEWS,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant

v.

BOWIE COUNTY, TEXAS; JAMES PRINCE; COMMUNITY EDUCATION
CENTERS, INCORPORATED; CIVIGENICS, INCORPORATED,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 5:12-CV-82


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Jimmy Don Mathews filed suit pursuant to 42 U.S.C. § 1983 against
Bowie County, Texas; Sheriff James Prince; Community Education Centers,
Inc. (CEC); CiviGenics, Inc.; and unknown “John Doe” defendants. In his
second amended complaint, he alleged that unknown guards at Bowie County
Jail used unreasonable and excessive force against him. He further contended



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-41307

that he sought medical treatment from injuries sustained from the alleged use
of force, but received treatment only after an unreasonable delay, resulting in
severe physical and mental pain. The district court, after briefing by the
parties, dismissed Mathews’s claims against Bowie County, Sheriff Prince,
CEC, and CiviGenics pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim. The district court permitted the claims against the
unknown “John Doe” defendants to proceed. Mathews now appeals from the
dismissal of his § 1983 and state law claims against the named defendants.
      We review de novo a dismissal under Rule 12(b)(6). Bass v. Stryker
Corp., 669 F.3d 501, 506 (5th Cir. 2012). “To survive a Rule 12(b)(6) motion to
dismiss, the plaintiff must plead ‘enough facts to state a claim to relief that is
plausible on its face.’” In re Katrina Canal Breaches Litigation, 495 F.3d 191,
205 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A dismissal for failure to state a claim will be affirmed “if, taking the
plaintiff’s allegations as true, it appears that no relief could be granted based
on the plaintiff’s alleged facts.” Samford v. Dretke, 562 F.3d 674, 678 (5th Cir.
2009) (internal quotation marks and citation omitted).
      A governmental entity or municipality may be held liable under § 1983
only if official policy or custom caused the deprivation of a constitutional right.
Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978).
The plaintiff must prove that the policy or custom in question was adopted
with “deliberate indifference” and that there was “a direct causal link between
the municipal action and the deprivation of federal rights.” In re Foust, 310
F.3d 849, 862 (5th Cir. 2002) (internal quotation marks and citation omitted).
Thus, the plaintiff must prove (1) the existence of a policymaker; (2) the
existence of a policy or custom; and (3) a violation of his constitutional rights




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                                 No. 13-41307

that resulted from the policy or custom. Hampton Co. Nat’l Surety, LLC v.
Tunica Cnty., 543 F.3d 221, 227 (5th Cir. 2008).
      Mathews failed to state a claim under § 1983 against any of the named
defendants. His second amended complaint did not allege that the custom or
policy in question was adopted with deliberate indifference. Rather, a plain
reading of his complaint reflects that his allegations of deliberate indifference
are confined only to the actions of the unknown correctional officers. Thus, the
district court properly dismissed his § 1983 claim against the named
defendants. In re Foust, 310 F.3d at 862. Furthermore, we have consistently
held, as is the case here, that “[a]llegations of an isolated incident are not
sufficient to show the existence of a custom or policy.”       Fraire v. City of
Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992). In addition, to the extent that
Mathews even attempts to allege a custom or policy, his conclusory allegations
that his treatment violated the Texas Administrative Code are insufficient to
establish § 1983 liability. See Brown v. Texas A&M University, 804 F.2d 327,
335 (5th Cir. 1986). “Such action may constitute a breach of contract or
violation of state law, but unless the conduct trespasses on federal
constitutional safeguards, there is no constitutional deprivation.” Id. Finally,
as to the dismissed state law claims of assault and battery, Mathews does not
address this issue on appeal, and it is therefore abandoned. See United States
v. Green, 964 F.2d 365, 371 (5th Cir. 1992).
      Mathews also argues on appeal that the district court erred by denying
him leave to file a third amended complaint. We review a district court’s denial
of a motion to amend a pleading for abuse of discretion. See United States v.
Riascos, 76 F.3d 93, 94 (5th Cir. 1996). The district court based its denial on a
several factors, including the futility of the proposed amendments, undue
delay, repeated failure to cure deficiencies by amendments previously allowed,



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and undue prejudice. Having reviewed the pleadings, we conclude that the
district court acted within its discretion, as the proposed amendments were
futile. See Martin’s Herend Imports, Inc. v. Diamond & Gem Trading United
States of America Co., 195 F.3d 765, 771 (5th Cir. 1999). Furthermore, the trial
court properly considered other relevant factors, such as the “unexplained
delay” in adding additional claims and the fact that the circumstances
underlying the amended complaint were known to Mathews when the original
complaint was filed. See In re Southmark Corp., 88 F.3d 311, 316 (5th Cir.
1996).
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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