     Case: 16-40789   Document: 00514035585     Page: 1   Date Filed: 06/15/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT

                                                             United States Court of Appeals

                                 No. 16-40789
                                                                      Fifth Circuit

                                                                    FILED
                                                                June 15, 2017

ADAM A. BALLE,                                                 Lyle W. Cayce
                                                                    Clerk
             Plaintiff–Appellant,

v.

NUECES COUNTY, TEXAS; DEBORAH CHARETTE; CHELSEA
JOHNSON,

             Defendants–Appellees.




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


Before KING, JOLLY, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      This 42 U.S.C. § 1983 case arises out of injuries Adam Balle allegedly
sustained while he was detained at a facility operated by Nueces County and
was under the care of the facility’s medical professionals, Deborah Charette
and Chelsea Johnson. The district court dismissed Balle’s claims against
Nueces County, Charette, and Johnson under Federal Rule of Civil Procedure
12(b)(6). We AFFIRM in part, REVERSE in part, and REMAND.
                             I. BACKGROUND
      According to the amended complaint, on March 6, 2012, two Corpus
Christi police officers responded to a domestic dispute at Balle’s home and took
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                                 No. 16-40789
Balle into custody. At the time, Balle was diabetic and suffered from a back
disability, though he was able to stand and walk without assistance. While
escorting Balle to the police car, one of the officers kicked Balle twice in the
middle of his back, causing him to fall to the ground. Balle experienced a sharp
pain in his back. Nonetheless, the officers pulled Balle into the police car and
transported him to the Corpus Christi Detention Center, where he was held
for several hours without medical attention.
      Balle was then transported to the Nueces County Jail. Balle alleges that,
throughout his six-day detention at the jail, he was given little medical
attention, even though he was experiencing excruciating pain and repeatedly
requested help. On March 9, 2012, the jail’s “Pass Logs”—which serve as a
record of the jailers’ observations from their daily rounds—indicated that Balle
had “soiled himself” and was “unable to clean himself.” In response, an “officer
took him to 3R to shower,” and his “cell was clean[ed] and clothes were
replaced.” On March 10, Balle allegedly sent a communication to jail officials
indicating that he needed medical attention, was unable to care for himself,
had lost the ability to control his bodily functions, and was experiencing severe
muscle spasms. The following day, the Pass Logs stated: “Inmate Adam Balle
complaining of losing use of legs and in pain. Taken to medical. Checked [and]
cleared by C. Johnson, nurse.”
      On March 12, 2012, the Pass Logs indicated that Balle “did not go to
diabetic check” because he said “he was paralyzed and could not walk.” “Nurse
Asher” and “PA Deborah” apparently spoke with Balle, but once again, Balle
was “checked and cleared.” In describing this evaluation, the Pass Logs stated,
“PA [said] that he is refusing to move.” Later that day, Balle was finally
transported to a hospital, where he was diagnosed with various back injuries.
Balle underwent surgery a few days later. Despite the surgery, however, Balle
has stated that he remains unable to walk.
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                                      No. 16-40789
       On March 5, 2014, Balle brought this suit under 42 U.S.C. § 1983 against
the City of Corpus Christi, the two police officers who arrested him, Nueces
County, ten John Does, and ten Jane Does. 1 Neither Charette nor Johnson was
named as a defendant in Balle’s original complaint. Through subsequent
discovery, Balle was able to identify Charette and Johnson as the medical
professionals purportedly responsible for his care while at the jail. Thus, in
October 2014, Balle filed an amended complaint substituting Charette and
Johnson for two of the Jane Does.
       Nueces County, Charette, and Johnson then filed motions to dismiss
under Rule 12(b)(6). The magistrate judge recommended granting Johnson’s
and Charette’s motions to dismiss because they were added as named
defendants after the statute of limitations period had run. The district court
adopted this recommendation and dismissed Balle’s claims against Charette
and Johnson. Separately, the magistrate judge recommended denying Nueces
County’s motion to dismiss. The district court declined to adopt this
recommendation and granted the county’s motion, holding that Balle had
inadequately pleaded his municipal liability claim. This appeal followed.
                                   II. DISCUSSION
       Balle argues that the district court erred in holding that (A) his claims
against Charette and Johnson were untimely and (B) he inadequately pleaded
municipal liability. We review “motions to dismiss pursuant to Rule 12(b)(6)
de novo, ‘accepting all well-pleaded facts as true and viewing those facts in the
light most favorable to the plaintiff.’” Ibe v. Jones, 836 F.3d 516, 524 (5th Cir.
2016) (quoting Toy v. Holder, 714 F.3d 881, 883 (5th Cir. 2013)). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted



       1In March 2016, the City of Corpus Christi and the police officers settled with Balle;
therefore, those defendants are not parties to this appeal.
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                                    No. 16-40789
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. Moreover, a complaint will
not be dismissed merely because it contains an “imperfect statement of the
legal theory supporting the claim asserted.” Johnson v. City of Shelby, 135 S.
Ct. 346, 346 (2014).
A.    Timeliness of the Claims Against Charette and Johnson
      The parties appear to agree that the cause of action accrued on March
12, 2012. However, the length of the limitations period for a § 1983 claim “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). As we have previously noted, “Texas has a two year statute of
limitations for personal injury claims.” Id.; see Tex. Civ. Prac. & Rem. Code
Ann. § 16.003(a). Although Balle brought suit within two years of March 12,
2012, he did not name Charette and Johnson as defendants until he filed his
amended complaint in October 2014. Nevertheless, Balle argues that the
amendment related back to his original complaint or, in the alternative, that
the limitations period should have been equitably tolled.
      Federal Rule of Civil Procedure 15(c)(1) states that “[a]n amendment to
a pleading relates back to the date of the original pleading” in a few specific
circumstances. First, under Rule 15(c)(1)(A), an amendment relates back when
“the law that provides the applicable statute of limitations allows relation
back.” Section 16.003(a) of the Texas Civil Practice and Remedies Code, which
establishes the two-year limitations period for personal injury suits, is silent
on the issue of tolling and relation back. By contrast, Section 16.0045(d)
provides that the limitations period for certain sex crimes “is tolled for a suit
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                                      No. 16-40789
on the filing of a petition . . . alleging that the identity of the defendant in the
suit is unknown and designating the unknown defendant as ‘John or Jane
Doe.’” The state legislature could have included a similar provision in Section
16.003 if it “had intended for the two-year statute of limitations to be tolled as
to unknown defendants by the filing of a ‘John Doe’ petition” in other types of
personal injury suits. Riston v. Doe, 161 S.W.3d 525, 529 (Tex. App.—Houston
[14th Dist.] 2004, pet. denied). But the legislature did not do so. Accordingly,
we conclude that the Texas law providing the applicable limitations period
does not allow relation back within the meaning of Rule 15(c)(1)(A).
       In addition, Rule 15(c)(1)(C) provides that an amendment relates back to
the original complaint when, in addition to meeting certain other
requirements, “the amendment changes the party or the naming of the party
against whom a claim is asserted” and “the party to be brought in by
amendment . . . knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper party’s identity.”
This rule “is meant to allow an amendment changing the name of a party to
relate back to the original complaint only if the change is the result of an error,
such as a misnomer or misidentification.” Jacobsen v. Osborne, 133 F.3d 315,
320 (5th Cir. 1998) (quoting Barrow v. Wethersfield Police Dep’t, 66 F.3d 466,
469 (2d Cir. 1995)). 2 However, when a plaintiff names “a ‘John Doe’ defendant,
there [is] no ‘mistake’ in identifying the correct defendant; rather, the problem
[is] not being able to identify that defendant.” Id. at 321; accord Whitt v.
Stephens County, 529 F.3d 278, 283 (5th Cir. 2008).
       In Jacobsen, a plaintiff filed a timely complaint naming “Deputy John
Doe” as one of several defendants. 133 F.3d at 317. After the limitations period


       2 In 2007, some minor organizational and stylistic amendments were made to Rule
15(c), but the substance of the rule remains the same as the version in effect when Jacobsen
was decided. See Fed. R. Civ. P. 15(c) advisory committee’s note to 2007 amendment.
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                                       No. 16-40789
had passed, the plaintiff learned the identities of the three deputies involved
in the incident and moved to add those deputies as defendants. Id. We held
that     the   amendment        “was     not    necessitated       by     the   ‘mistake’   or
‘misidentification’ at which Rule 15(c)[] is aimed” and thus “the Rule does not
allow relation back to the filing of the original complaint.” 3 Id. at 321–22.
Likewise, in the instant case, Balle’s inability to identify Charette and Johnson
by name in his original complaint did not constitute a mistake under Rule
15(c)(1). Thus, we hold that Balle’s amended complaint did not relate back to
the date of his original complaint.
        Next, “[t]he doctrine of equitable tolling preserves a plaintiff’s claims
when strict application of the statute of limitations would be inequitable.”
Lambert v. United States, 44 F.3d 296, 298 (5th Cir. 1995). “Traditional
equitable principles preclude a court from invoking equitable tolling, however,
when the party seeking relief has an adequate legal or statutory remedy to
avoid the consequences of the statute of limitations.” Id. at 299. In Green v.
Doe, we held that equitable tolling was appropriate “because the delay in
determining the identity of ‘John Doe’ [was] not attributable to” the plaintiff’s
actions—the plaintiff had “filed motions for discovery twice before limitations
expired,” but “[t]he district court denied both motions.” 260 F. App’x 717, 719
(5th Cir. 2007) (per curiam). Still, our decision was careful to distinguish



        3 This conclusion is “consistent with the majority of the other circuits that have
considered the issue.” Jacobsen, 133 F.3d at 320–21. Notably, however, the Third Circuit has
taken the approach that “the plaintiff’s lack of knowledge of a particular defendant’s identity
can be a mistake under Rule 15(c)[].” Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 201 (3d
Cir. 2001). The Third Circuit has explained that the approach taken by the majority of
circuits “render[s] the § 1983 statute of limitations much shorter” for a complainant who does
not know the names of the offending municipal employees. Id. at 190. Such a complainant
“likely need[s] discovery to determine the names of his [offenders], although he cannot get
discovery until he files his § 1983 complaint.” Id. Thus, he must “file his complaint
substantially before the running of the statute of limitations on his claim in order to avoid
having his claim end up being barred.” Id.
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                                  No. 16-40789
Green’s case from Jacobsen, noting that Green had filed his lawsuit “almost
eleven months before the running of the statute.” Id. at 719. Thus, “if he had
not been denied discovery he would have had sufficient time to identify the
officer and amend his complaint under rule 15(a) without need to relate back
under rule 15(c).” Id. at 720.
      In the case at bar, Balle’s inability to determine the identities of the Jane
Does before the limitations period had run was attributable to his own decision
to file his suit so close to the end of the limitations period. Unlike the plaintiff
in Green, Balle filed his original complaint only a few days before the
limitations period had run. Accordingly, we hold that equitable tolling was
unnecessary in this case. The district court did not err in concluding that
Balle’s claims against Charette and Johnson were barred by the statute of
limitations.
B.    Municipal Liability
      “To establish municipal liability under § 1983, a plaintiff must show that
(1) an official policy (2) promulgated by the municipal policymaker (3) was the
moving force behind the violation of a constitutional right.” Peterson v. City of
Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009). “While an unconstitutional
official policy renders a municipality culpable under § 1983, even a facially
innocuous policy will support liability if it was promulgated with deliberate
indifference to the ‘known or obvious consequences’ that constitutional
violations would result.” Piotrowski, 237 F.3d at 579 (footnote omitted)
(quoting Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 407 (1997)).
A jail official violates “a pretrial detainee’s due process right to medical care”
when the official has “subjective knowledge of a substantial risk of serious




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                                       No. 16-40789
harm to a pretrial detainee but respond[s] with deliberate indifference to that
risk.” Hare v. City of Corinth, 74 F.3d 633, 636, 650 (5th Cir. 1996) (en banc). 4
       As an initial matter, the district court held that Balle had failed to state
a claim for relief under Rule 12(b)(6) because his complaint did not specifically
identify Nueces County’s policymaker. However, “when a complaint contains
sufficient ‘factual allegations,’ a court should not grant a motion to dismiss ‘for
imperfect statement of the legal theory supporting the claim asserted.’” Groden
v. City of Dallas, 826 F.3d 280, 284 (5th Cir. 2016) (quoting Johnson, 135 S. Ct.
at 346). We recently held that “the specific identity of the policymaker is a legal
question that need not be pled” in the complaint to survive a motion to dismiss.
Id. at 284. Therefore, the district court erred in concluding that Balle was
“required to plead the identity of the policymaker.”
       Next, the district court held that Balle failed to plead “facts that
demonstrate a widespread unconstitutional practice or custom.” Although an
official policy “usually exists in the form of written policy statements,
ordinances, or regulations, . . . it may also arise in the form of a widespread
practice that is ‘so common and well-settled as to constitute a custom that
fairly represents municipal policy.’” Peterson, 588 F.3d at 847 (quoting
Piotrowski, 237 F.3d at 579). To survive a motion to dismiss, a complaint’s



       4  In some cases, the test for municipal liability has been articulated differently: “a
plaintiff must show: (1) that the municipal employee violated his clearly established
constitutional rights with subjective deliberate indifference; and (2) that this violation
resulted from a municipal policy or custom adopted and maintained with objective deliberate
indifference.” See, e.g., Olabisiomotosho v. City of Houston, 185 F.3d 521, 528–29 (5th Cir.
1999). “To demonstrate subjective deliberate indifference under the first prong, the plaintiff
must show that the municipal employee ‘knew of and disregarded an excessive risk to the
[detainee’s] health or safety.’” Brumfield v. Hollins, 551 F.3d 322, 331 (5th Cir. 2008)
(alteration in original) (quoting Gibbs v. Grimmette, 254 F.3d 545, 549 (5th Cir. 2001)).
“Under the second prong, the plaintiff must identify a policymaker and show that an official
policy is the ‘moving force’ behind the municipal employee’s allegedly unconstitutional act.”
Id. (quoting Piotrowski, 237 F.3d at 578). The contours of these two tests appear to be
basically the same.
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                                   No. 16-40789
“description of a policy or custom and its relationship to the underlying
constitutional violation . . . cannot be conclusory; it must contain specific facts.”
Spiller v. City of Tex. City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997). Thus,
pleadings are sufficient when they make specific factual allegations that allow
a court to reasonably infer that a policy or practice exists and that the alleged
policy or practice was the moving force behind municipal employees’ deliberate
indifference to an inmate’s serious medical needs. See Colle v. Brazos County,
981 F.2d 237, 245 (5th Cir. 1993).
      In Colle, we held that municipal liability was adequately pleaded
because the facts in the complaint supported an inference that county policies
caused an inmate to be denied reasonable medical care. Id. at 244–46. The
complaint “cited with excruciating detail the events leading up to [the
inmate’s] death, as well as the alleged policies responsible for the inattention
to [the inmate’s] steadily declining physical state.” Id. at 245. Specifically, the
complaint alleged that the county had “a policy of maintaining an on-duty jail
supervisory staff that did not include anyone with authority to transfer an
inmate to a medical facility” and “a policy of inadequate monitoring of pretrial
detainees which amounted to a denial of medical care.” Id. We concluded that
“the facts pleaded . . . could support an inference that unconstitutional county
policies were the ‘moving force’ behind the carelessness that led to [the
inmate’s] death.” Id. at 246.
      Similarly, Balle’s amended complaint alleges that Nueces County failed
“to properly and adequately enforce policies and procedures mandated by the
Texas Commission on Jail Standards.” Those state rules require jails to
implement “procedures for efficient and prompt care for acute and emergency
situations.” 37 Tex. Admin. Code § 273.2. Yet Balle’s allegations regarding the
consistently slow and inefficient medical care he received suggest that Nueces
County had little regard for the medical standards imposed by the state.
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                                       No. 16-40789
According to the amended complaint, when Balle soiled himself and was
unable to clean himself, jail personnel merely took him to the showers and gave
him a change of clothes. No medical attention was provided at that time. The
complaint also indicates that when Balle subsequently complained he was
unable to control his bodily functions and was experiencing severe muscle
spasms, he was not given medical attention until the following day. Even then,
Balle was allegedly “[c]hecked” and “cleared” by medical staff, and no further
action was taken. Finally, the complaint states that when Balle complained
that he was paralyzed and unable to walk, medical staff “checked and cleared”
him once again and simply reported that Balle was “refusing to move.”
        The complaint in specific terms alleges that jail personnel did not provide
Balle with even minimally adequate medical care for his acute and emergency
needs and made little effort to transfer him to a hospital, despite his numerous
complaints that he was experiencing a medical emergency. This pattern of
failures defied state law requiring that Nueces County implement procedures
to efficiently and promptly treat inmates during “acute and emergency
situations.” Reasonable inferences can clearly be drawn that Nueces County
had an unwritten policy or a widespread practice that fairly represents
municipal policy of consistent noncompliance with required state medical
standards and that this policy or practice of noncompliance was the moving
force       behind   the   unconstitutional        injuries—the     Eighth     Amendment
violations—inflicted upon Balle. In short, the amended complaint pleaded facts
sufficient to support a municipal liability claim that is plausible on its face.
Thus, we hold that the district court erred in dismissing Balle’s claims against
Nueces County under Rule 12(b)(6). 5


        Finally, Balle has not adequately briefed or argued a failure-to-train claim on appeal,
        5

so any such claim is waived for purposes of this appeal. See Willis v. Cleco Corp., 749 F.3d
314, 319 (5th Cir. 2014).
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                                No. 16-40789
                            III. CONCLUSION
      For the reasons discussed above, we AFFIRM the district court’s
dismissal of the claims against Charette and Johnson, REVERSE the dismissal
of the claims against Nueces County, and REMAND the case for further
proceedings consistent with this opinion.




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