     Case: 18-30323   Document: 00515082072     Page: 1   Date Filed: 08/19/2019




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

                                                                  FILED
                                                              August 19, 2019
                                 No. 18-30323
                                                               Lyle W. Cayce
                                                                    Clerk
AMY MCDONALD NOBRE, on behalf of K.M.C.; CHASTITY GUIDRY, on
behalf of L.G.,

             Plaintiffs - Appellants

v.

LOUISIANA DEPARTMENT OF PUBLIC SAFETY; JERRY GOODWIN,

             Defendants - Appellees




                Appeal from the United States District Court
                   for the Western District of Louisiana


Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      The mother of a Louisiana inmate filed suit against state prison officials
alleging Eighth Amendment violations and state-law wrongful death and
survival claims arising out of her son’s death. A year later, she learned that
her son had two children. Under Louisiana law, these children were the proper
parties to bring the action, and so she substituted their natural tutors, Amy
Nobre and Chastity Guidry, as plaintiffs. But the substitution occurred after
expiration of the statutory limitations period. We must determine whether the
substitution relates back to the date of the initial complaint. We hold that it
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does, REVERSE the district court’s dismissal of Nobre and Guidry’s wrongful
death and 42 U.S.C. § 1983 claims, and remand for further proceedings.
                                      I.
      According to the pleadings, inmates arriving at the Louisiana
Department of Corrections’ David Wade Correctional Center were routinely
issued two combination locks. In the first two months of 2016, the Center
experienced two incidents in which an inmate attacked another using a lock as
a weapon. The Department nonetheless allowed inmates to retain locks. On
February 11, 2016, while inmate Kenneth Cotton was sleeping in his bed,
another inmate, Anthony Tellis, beat Cotton, striking his head with a lock and
fracturing his skull. Prison staff transported Cotton to a hospital, where he
underwent brain surgery, but died from his injuries on February 20, 2016.
      On September 14, 2016, Cotton’s mother, Enriqueta Moore, filed a
petition for damages in Louisiana’s Second Judicial District Court for the
Parish of Claiborne, naming the attacker Tellis, the Department of
Corrections, the David Wade Center’s warden, and the Department’s insurers
as defendants. Moore alleged that the defendants failed to protect Cotton from
bodily harm, allowed inmates to possess combination locks that defendants
knew would be used as weapons, failed adequately to train staff to supervise
prisoners, failed to provide timely medical attention to Cotton, caused Cotton
physical harm, and otherwise committed acts of negligence. Moore also alleged
that the Department, warden, and their agents inflicted extreme emotional
distress upon her, deceiving her as to Cotton’s health status following the
attack, and preventing her from seeing or speaking with her son between the
attack and his death. Moore sought damages under Louisiana’s wrongful death
and survival action statutes, and Section 1983. As Cotton’s mother, Moore
alleged she was the proper party to bring the action.


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      On October 20, 2016, the Department and the warden filed a Notice of
Removal in the United States District Court for the Western District of
Louisiana. They stated that Moore’s suit “assert[s] federal claims under 42
U.S.C. § 1983,” and that the district court “ha[d] jurisdiction of this cause of
action under 28 U.S.C. § 1331, federal question jurisdiction.”
      On March 8, 2017, Moore moved for leave to file an amended complaint.
Since filing her original complaint, Moore had learned that Cotton had two
minor children. Under Louisiana law, these children were the proper parties
to bring the action, and so Moore substituted the children’s natural tutors—
their mothers Amy Nobre and Chastity Guidry—as plaintiffs. The amended
complaint otherwise “reiterate[d] all allegations, theories of recovery and
remedies which were listed and set forth in the allegations and prayer of the
original Complaint.” The district court granted Moore’s motion for leave to
amend.
      The Department and warden moved to dismiss Nobre and Guidry’s
action as untimely. Pointing out that the district court looks to state law for
the limitations period in Section 1983 suits, the defendants argued that the
relevant limitations period under Louisiana Civil Code Article 3492 was one
year running from Cotton’s death. Although Moore’s original complaint was
filed during the limitations period, Moore was not the proper party to bring the
action. The amended complaint substituted the correct plaintiffs, but was filed
sixteen days after the limitations period had expired.
      Nobre and Guidry responded that the amended complaint related back
to the filing of the original complaint. While Moore only learned of Cotton’s
children in March 2017, Nobre and Guidry argued the defendants knew of the
children earlier. The plaintiffs attached for the first time a “Master Record
Inquiry,” a document prepared by the David Wade Correctional Center in
which Cotton was described as the father of two children.
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       Refusing to consider evidence beyond the pleadings, the district court
granted the defendants’ motion to dismiss. “Out of an abundance of caution,”
the district court analyzed the relation-back issue under both Louisiana law
and Rule 15(c). It held that, under both, relation back was not permitted
because the pleadings did not establish that the defendants knew of Cotton’s
children. Nobre and Guidry appeal the dismissal of their wrongful death claim
and associated Section 1983 claim for wrongful death damages. 1
                                              II.
                                              A.
       We have jurisdiction to hear this appeal. The well-pleaded complaint
presents a federal question. 2 It alleges that Cotton was an inmate in state
custody, that state officials failed to protect him and failed to provide him with
adequate medical care, and that he died as a result. These facts support
colorable claims under Section 1983 to redress violations of Cotton’s rights
under the Eighth and Fourteenth Amendments 3 to be free from officials’
deliberate indifference to substantial risks of serious harm, including via the
provision of adequate medical care, 4 and thus a federal question. The appeal
challenges a final judgment of the district court. 5 We review the district court’s
grant of a motion to dismiss de novo. 6 In reviewing such a decision, we accept



       1  Appellants’ counsel stated during oral argument that appellants have waived their
survival related claims.
        2 The amended complaint incorporates by reference Moore’s original complaint.
        3 If Cotton was a pretrial detainee—unlikely, given that he was incarcerated in the

Center since 2006—his claims would arise only under the Fourteenth Amendment. Hare v.
City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996) (en banc) (“The constitutional rights of a
pretrial detainee . . . flow from both the procedural and substantive due process guarantees
of the Fourteenth Amendment.”); id. at 643 (holding that a pretrial detainee may challenge
“episodic acts or omissions” of individual officials where these officials acted with deliberate
indifference).
        4 Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 754–55 (5th Cir. 2001).
        5 28 U.S.C. § 1291.
        6 Hines v. Alldredge, 783 F.3d 197, 200–01 (5th Cir. 2015).

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all well-pleaded facts as true and view those facts in the light most favorable
to the plaintiff. 7
                                           B.
       As Section 1983 does not provide a relevant limitations period, we look
to the law of the forum state. 8 Here, the parties agree that in analogous
delictual actions under the Louisiana Civil Code, plaintiffs must file within one
year of the decedent’s death. 9
       Cotton died on February 20, 2016. Moore’s original complaint was filed
on September 14, 2016, within the relevant limitation periods; Nobre and
Guidry’s amended complaint was filed on March 9, 2017, after that period had
expired. To determine whether the amended complaint relates back to Moore’s
original complaint, the court applies Federal Rule of Civil Procedure 15(c)(1). 10
This Rule provides:
       An amendment to a pleading relates back to the date of the original
       pleading when:
           (A) the law that provides the applicable statute of limitations
              allows relation back;
           (B) the amendment asserts a claim or defense that arose out of
              the conduct, transaction, or occurrence set out—or
              attempted to be set out—in the original pleading; or
           (C) the amendment changes the party or the naming of the
              party against whom a claim is asserted, if Rule 15(c)(1)(B) is
              satisfied and if, within the period provided by Rule 4(m) for
              serving the summons and complaint, the party to be brought
              in by amendment:
              (i) received such notice of the action that it will not be
                  prejudiced in defending on the merits; and


       7  Id. at 201.
       8  Braden v. Texas A & M Univ. Sys., 636 F.2d 90, 92 (5th Cir. 1981).
        9 LA. CIV. CODE art. 2315.2.
        10 See Sanders-Burns v. City of Plano, 594 F.3d 366, 380 (5th Cir. 2010) (applying

state-law statute of limitations and Rule 15 for relation back in a Section 1983 suit).
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             (ii) knew or should have known that the action would have
                 been brought against it, but for a mistake concerning the
                 proper party’s identity. 11
Rule 15(c) refers only to amendments changing defendants, but the Advisory
Committees’ Notes to the Rule state that,
             [R]elation back of amendments changing plaintiffs is
             not expressly treated in revised Rule 15(c) since the
             problem is generally easier. Again the chief
             consideration of policy is that of the statute of
             limitations,   and     the    attitude   taken     in
             revised Rule 15(c) toward change of defendants
             extends by analogy to amendments changing
             plaintiffs. 12

The Louisiana Supreme Court describes the policy of the Louisiana statute of
limitations as “afford[ing] a defendant economic and psychological security if
no claim is made timely, and . . . protect[ing] him from stale claims and from
the loss of non-preservation of relevant proof.” 13
      Applying Rule 15(c)(1)(A), we begin by asking whether “the law that
provides the applicable statute of limitations”—Louisiana law—allows relation
back. 14 Louisiana’s relation-back doctrine as applied to the substitution of
plaintiffs is governed by the test set out by the Louisiana Supreme Court in
Giroir v. South Louisiana Medical Center. In that case, the husband of a
woman who died during medical treatment sued the hospital under Louisiana’s
wrongful death and survival statutes. 15 After the limitations period expired,
the plaintiffs amended the complaint to add the decedent’s children as
plaintiffs on both claims. 16 The hospital had actual knowledge of the existence


      11 FED. R. CIV. P. 15(c)(1).
      12 FED. R. CIV. P. 15 (1966 Amendment Notes).
      13 Giroir v. S. La. Med. Ctr., 475 So. 2d 1040, 1045 (La. 1985).
      14 FED. R. CIV. P. 15(c)(1)(A).
      15 Giroir, 475 So. 2d at 1041–42.
      16 Id.

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of the children. 17 The Louisiana Supreme Court held that the amended claims
related back because they met four criteria: (1) the amended claims arose out
of the same conduct, transaction, or occurrence set forth in the original
petition—namely, the decedent’s death; (2) the defendant either knew or
should have known of the existence and involvement of the new plaintiffs—the
hospital had actual notice of the children’s existence; (3) the new and the old
plaintiffs were sufficiently related so that the added or substituted parties
were not wholly new or unrelated—addition of the children “d[id] not change
the basic underlying claim”; and (4) the defendant was not prejudiced in
preparing and conducting its defense. 18
       Here, as in Giroir, the amended claims arise out of the same conduct and
occurrence set forth in the original complaint, namely the prison’s alleged role
in Cotton’s death. In fact, the amended complaint differs from Moore’s original
pleading only with respect to who is bringing the claims. Formally, the
underlying harms suffered by Cotton’s children are independent from those
suffered by Moore—this was true also in Giroir. But Cotton’s children and
Cotton’s mother are closely related, and the substitution of the decedent’s
family members as plaintiffs leaves the basic underlying facts and claim
unchanged. 19
       Defendants argue that, unlike the defendant hospital in Giroir, they
lacked knowledge of Cotton’s children. The district court accepted this
argument, confining its analysis to the pleadings, which alleged that Cotton
was the father of the two children but made no mention of the Department’s or
the warden’s knowledge of Cotton’s children—an allegation not necessary to


       17 Id. at 1045.
       18 Id. at 1044–45.
       19 See id. at 1045 (“Clearly, the children are not wholly new or unrelated to their

father with respect to actions based on the death of their mother, and the addition of them
as plaintiffs does not change the basic underlying claim.”).
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state a claim, but relevant to the defense of limitations. This was in error. A
plaintiff is not required to anticipate or overcome affirmative defenses, such as
expiration of the statute of limitations, in the complaint. 20 When the
defendants raised the affirmative defense of expiration of the limitations
period in their motion to dismiss, the court was not prohibited from considering
sources beyond the pleadings to inform the relation-back analysis. 21
       It was also error for the district court to hold that the Master Record
Inquiry’s meaning was subject to reasonable dispute. That document’s
meaning is not equivocal. It states of Cotton, “Children: 02.” The document
unambiguously indicates that the                   Department—which produced and
maintained this document—knew of Cotton’s two children. According to the
district court, while the Master Record Inquiry records Cotton as having two
children, it provides “no proof that these children are filiated to Cotton.” But
the requirement of filiation, that is, a judicial determination of paternity, 22 was
misplaced. Under Louisiana law, “all children have the right to bring an action
for wrongful death” of their parent. 23 However, children born out of wedlock


       20  Gomez v. Toledo, 446 U.S. 635, 640 (1980) (finding “no basis for imposing on the
plaintiff an obligation to anticipate” an affirmative defense and to address it in the
complaint); see also United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005) (“[C]omplaints
do not have to anticipate affirmative defenses to survive a motion to dismiss.”); Braden v.
Wal-Mart Stores, Inc., 588 F.3d 585, 601 n.10 (8th Cir. 2009) (“[A] plaintiff need not plead
facts responsive to an affirmative defense before it is raised.”).
        21 Woods Expl. & Producing Co. v. Aluminum Co. of Am., 438 F.2d 1286, 1300 (5th

Cir. 1971) (holding that an amendment related back where “[t]he compendious record in this
case justifies our conclusion that no one was litigating in darkness”); see also U.S. ex rel.
Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 516–18 (6th Cir. 2007) (holding that extrinsic
evidence can be considered in determining whether a defendant was on notice of the
plaintiff's claims for the purpose of Rule 15(c)(2)); 6A CHARLES ALAN WRIGHT ET AL., FED.
PRAC. & PROC. CIV. § 1497 (3d ed.) (Apr. 2019 update) (describing decisions that have held “it
is sufficient if the opposing party was made aware of the matters to be raised by the
amendment from sources other than the pleadings,” and commenting that “[t]his position
seems sound since it is unwise to place undue emphasis on the particular way in which notice
is received”).
        22 Filiation, BLACK’S LAW DICTIONARY (11th ed. 2019).
        23 Jenkins v. Mangano Corp., 774 So. 2d 101, 103 (La. 2000).

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face an additional proof in their claim. An individual born out of wedlock is
deemed the child of the parent only where the individual’s “filiation to the
parent has been determined in the manner provided by law,” 24 namely by “an
action to prove paternity” under article 197 of the Code. 25 Therefore, where an
illegitimate child of the decedent brings a wrongful death claim “[a] filiation
action inherently accompanies [the] illegitimate child’s wrongful death . . .
action[,] [e]ven if an illegitimate child plaintiff does not specifically plead a
filiation action.” 26 Filiation can be established by the father’s formal
acknowledgement—being named on the child’s birth certificate—or by clear
and convincing evidence of informal acknowledgment—for example, writings,
the father’s “living in concubinage with the mother in his home at the time of
the child’s conception,” sharing a common surname, or the father’s
representations to his community. 27 Here, the Master Record Inquiry indicates
that Cotton’s marital status was “single,” and that, at least to prison officials,
he acknowledged his paternity relative to two children, both presumably born
out of wedlock. If this is accurate, proof of filiation will be part of Nobre and
Guidry’s burden in this case. But it is not a prerequisite to finding that the
defendants knew Cotton had children for purposes of the relation-back notice
analysis.




       24  LA. CIV. CODE art. 3506(8).
       25  Id. art. 197. “A biological relationship between the tort victim and the plaintiff child
is a ‘critical element’ of a claim arising under Louisiana Civil Code article 2315. A man is
presumed to be a child’s father when the child is born during his marriage to the mother or
‘within three hundred days from the date of the termination of the marriage.’ If the child’s
filiation is not presumed, the child can initiate an action to establish paternity under
Louisiana Civil Code article 197 to prove paternity in a lawful manner.” Henderson v. Turner,
2012 WL 3109482, at *3 (M.D. La. July 31, 2012) (citations omitted).
        26 Henderson, 2012 WL 3109482, at *4.
        27 Jenkins, 774 So. 2d at 103; Henderson, 2012 WL 3109482 at *4 (citing LA. CIV. CODE

art. 197 cmt. C).
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      Again to Giroir, the Louisiana Supreme Court found that the defendant
hospital “received actual notice of the existence of Mrs. Giroir’s children prior
to her death” on the basis of the patient’s mention of children and a nurse’s
meeting with her daughter:

                In a psychiatric consultation report dated October 15,
                1979, Dr. Ronald M. Bennett, Medical Director of the
                Terrebonne Mental Health Center, informed [the
                hospital’s] Clinical Social Worker, that Mrs. Giroir
                expressed anxiety about whether her grandchildren
                were being fed well similar to the anxiety she
                experienced when her son was in Viet Nam. [The
                hospital’s] registered nurse, testified that she took
                Mrs. Giroir to Ochsner’s Hospital for a CAT scan on
                March 13, 1980, and Mrs. Giroir’s daughter
                accompanied them. General references to visits or
                communications with Mrs. Giroir’s “family” and
                “family members” appear in the [hospital] nursing
                notes and records made during her illness. 28

The decedent in Giroir was the plaintiffs’ putative mother, and the plaintiffs
were apparently born in wedlock. But the Giroir court did not require proof or
corroboration of these facts to support the hospital’s knowledge of the children
for purposes of its relation-back analysis. Mention of children in defendant’s
records was sufficient to satisfy the third criterion of Giroir’s relation-back test.
We hold that, like the hospital in Giroir, the Department and the warden had
knowledge of Cotton’s children.
      Lastly, we consider prejudice. Nobre and Guidry’s amendment came
sixteen days after expiration of the limitations period, somewhat later than the
three-day delay in Giroir. 29 But the defendants present no indication that
allowing the amendment to relate back would prejudice their capacity to



      28   Giroir, 475 So. 2d at 1042.
      29   Id. at 1045.
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defend the suit, for example, that they would be deprived of relevant proof. 30
“[N]o essential protective purpose of the prescriptive statute is violated by
permitting relation back of the post prescription amendment based on the
same factual situation pleaded in the original timely petition.” 31
      Nobre and Guidry’s amendment satisfies all four Giroir factors. It would
be allowed to relate back under Louisiana law, and is also allowed to relate
back under Rule 15(c)(1).
                                       III.
      We REVERSE the district court’s dismissal of Nobre and Guidry’s
wrongful death and Section 1983 claims as time barred and remand for further
proceedings.




      30   Id.
      31   Id.
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