     Case: 12-50244       Document: 00512248686         Page: 1     Date Filed: 05/21/2013




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

                                                                            FILED
                                                                           May 21, 2013

                                       No. 12-50244                        Lyle W. Cayce
                                                                                Clerk

TEXAS INDIGENOUS COUNCIL; ANTONIO DIAZ,

                                                  Plaintiffs–Appellants
v.

G. D. SIMPKINS, Sergeant; G. ANDRADE, Officer; D. JOHNSON, Officer;
RANDALL K. TUCKER, Officer,

                                                  Defendants–Appellees



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:11-CV-315


Before REAVLEY, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
       Plaintiffs–Appellants Antonio Diaz and the Texas Indigenous Council
(collectively “Diaz”) appeal the district court’s grant of summary judgment for
Defendants–Appellees based on Diaz’s failure to properly plead a constitutional
violation under 42 U.S.C. § 1983. Because Diaz should have been permitted to
amend his complaint to specifically invoke § 1983, we REVERSE the district
court’s judgment.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50244

                                  Background
      Antonio Diaz leads the Texas Indigenous Council, an organization
politically active in human rights issues. On April 29, 2009, Diaz learned that
Rodolfo Macias, a Mexican citizen seeking assistance with his immigration
status, was injured when he was dragged from the Mexican consulate by San
Antonio police officers. Concerned with how the police treated Macias, Diaz and
other Council members met at the hospital to assess Macias’s condition. The
group intended to assemble on the sidewalk, about thirty feet across from the
emergency room entrance, until Macias was released.
      Two hospital security officers informed Sergeant Gary Simpkins about the
group gathering outside the hospital. Sergeant Simpkins had been involved with
Macias’s arrest and was at the hospital following up on the incident. Simpkins
spoke with the group multiple times that evening and eventually informed them
that they were violating Texas Penal Code section 42.03, which makes it illegal
to obstruct a public sidewalk. He requested that they clear the sidewalk and
stated that he could arrest them if they did not leave. When the group refused
to leave, Simpkins and Officers Dariel Johnson and Gregory Andrade arrested
Diaz and the other members, and Officer Randall Tucker transported them to
the San Antonio Police Department booking facility.
      Two years later, Diaz sued Simpkins, Andrade, Johnson, and Tucker,
alleging that the officers’ enforcement of Texas Penal Code section 42.03 violated
his “rights guaranteed by the U.S. Constitution and Texas Constitution.”
Specifically, Diaz alleged that the officers deprived him of the right to peaceably
assemble in violation of both the First Amendment and the Texas Bill of Rights.
The officers filed a “Motion to Dismiss and/or Motion for Summary Judgment,”
advancing four arguments: (1) Diaz failed to state a claim for the First
Amendment violation because he never specifically invoked 42 U.S.C. § 1983 and
instead pleaded his claim directly under the U.S. Constitution, (2) the Council

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                                  No. 12-50244

lacked standing to sue on behalf of any members other than Diaz, (3) the officers
were entitled to qualified immunity for the federal claim, and (4) the officers
were entitled to official immunity for the state law claim. Ten days after
receiving the officers’ motion, Diaz sought leave to amend his complaint “to
include a prayer of relief under 42 U.S.C. § 1983” and to add a new cause of
action for the wrongful arrest of Diaz in violation of the Fourth Amendment.
The magistrate judge denied the motion because Diaz had failed to show “good
cause.”
      Diaz then responded to the summary judgment motion and also requested
that the district court reconsider the magistrate judge’s denial of leave to amend.
After a hearing, the district court denied Diaz’s request to reconsider the motion
for leave to amend because “the Magistrate Judge’s decision was not clearly
erroneous given the facts of this case.” The court also granted the officers
summary judgment.        The court determined that summary judgment was
appropriate on the federal claim because Diaz “failed to properly plead that
claim under 42 U.S.C. § 1983” and found “no competent summary judgment
evidence . . . to overcome the claim of official immunity” on the state law claim.
Diaz timely appealed.
                                   Discussion
      Diaz argues that the district court erred in dismissing his federal claim
without allowing leave to amend. We review for abuse of discretion a district
court’s denial of leave to amend. Herrmann Holdings Ltd. v. Lucent Techs. Inc.,
302 F.3d 552, 558 (5th Cir. 2002).
      The analysis in this case is affected by the district court’s use of a
scheduling order. When a trial court imposes a scheduling order, Federal Rules
of Civil Procedure 15 and 16 operate together to govern the amendment of
pleadings. Rule 16(b) governs a party’s request to amend its pleading after a
scheduling order’s deadline to amend has passed. Fahim v. Marriott Hotel

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Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008). Under Rule 16(b), a party can
have the deadline extended only for good cause and with the judge’s consent. Id.
Good cause requires a party “to show that the deadlines cannot reasonably be
met despite the diligence of the party needing the extension.” S&W Enters.,
L.L.C. v. Southtrust Bank of Ala., 315 F.3d 533, 535 (5th Cir. 2003). Four factors
are relevant to this analysis: “(1) the explanation for the failure to timely move
for leave to amend; (2) the importance of the amendment; (3) potential prejudice
in allowing the amendment; and (4) the availability of a continuance to cure such
prejudice.” Fahim, 551 F.3d at 348 (quoting Sw. Bell Tel. Co. v. City of El Paso,
346 F.3d 541, 546 (5th Cir. 2003)). If the party meets the good-cause standard,
the deadline can be extended, and the more liberal standard of Rule 15(a) will
then apply to the request for leave to amend. Id.
      Here, four months after the scheduling order deadline, Diaz sought leave
to amend his complaint in two ways: (1) to add a new cause of action for
wrongful arrest, and (2) to explicitly invoke § 1983 for his First Amendment
claim. Because Diaz sought to replead after the relevant deadline had passed,
he was required to show good cause under Rule 16 to justify an extension of the
deadlines.
      Diaz cannot show good cause to justify allowing him to add a new cause
of action for wrongful arrest. First, this request was unaccompanied by an
adequate explanation for the delay. Diaz argued that he was unable to timely
seek leave to amend to include the wrongful arrest claim because the officers
raised the issue of probable cause for the first time in their motion for summary
judgment when they argued that probable cause for Diaz’s arrest precluded any
constitutional violation. Diaz argues that this defense put probable cause at
issue in the case, creating the need to amend the complaint and add a wrongful
arrest claim. But this justification is undermined by the language Diaz used in
advancing his First Amendment claim. Diaz alleged that he and the others were

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                                  No. 12-50244

lawfully gathered on the sidewalk but were “forcibly restricted of their
constitutionally-protected rights through unlawful arrest.” (emphasis added).
Indeed, Diaz’s complaint contains multiple references to an “unlawful arrest” on
the part of the officers. Thus, it is unclear why a wrongful arrest claim could not
have been raised earlier in the case. Neither discovery nor the motion for
summary judgment revealed any previously unknown evidence indicating the
availability of a new cause of action. Additionally, because the discovery period
ended before Diaz sought leave to amend, the officers would have been
prejudiced if they had been forced to defend against a new claim and basis for
recovery so late in the litigation. Though the district court could have continued
the case to reopen discovery, it was by no means required to. Instead, the court
was afforded “broad discretion to preserve the integrity and purpose of [its]
pretrial order,” S&W Enters., 315 F.3d at 535, and it acted within that discretion
in denying leave to add the new claim.
      Diaz’s request to amend his complaint to invoke § 1983, however, presents
a different question. We have long held that “[m]ere technical defects in a
pleading do not provide a basis for dismissal.” Jones v. Louisiana, 764 F.2d
1183, 1185 (5th Cir. 1985). Instead, the federal rules “permit liberal amendment
to facilitate determination of claims on the merits and to prevent litigation from
becoming a technical exercise in the fine points of pleading.” Id. (quoting
Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir. 1981)). Diaz’s
failure to specifically cite § 1983 was at best an unintentional, technical pleading
mistake, which the officers did not raise until after it was too late for Diaz to
cure the defect. Once made aware of the error, Diaz sought leave to amend,
confirming what the parties had known all along—that Diaz intended to assert
a constitutional violation via § 1983. The officers would have suffered little, if
any, prejudice if the amendment were allowed as they had prepared their case
under § 1983, asserting the qualified immunity defense associated with such a

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                                  No. 12-50244

claim. By contrast, denying leave to amend determined the outcome of the case.
Under these circumstances, Diaz established good cause under Rule 16 to justify
extending the deadlines of the scheduling order.
      Once good cause is established, Rule 15’s more liberal pleading standard
applies to the district court’s decision to deny leave. S&W Enters., 315 F.3d at
536. Rule 15 provides that the court “should freely give leave when justice so
requires.” Fed. R. Civ. P. 15(a)(2). “Granting leave to amend is especially
appropriate, in cases such as this, when the trial court has dismissed the
complaint for failure to state a claim.” Griggs v. Hinds Junior Coll., 563 F.2d
179, 180 (5th Cir. 1977) (citation omitted). “Permission should be denied only
if it appears to a certainty that plaintiffs cannot state a claim showing they are
entitled to relief or defendant will be unduly prejudiced.”       Hildebrand v.
Honeywell, Inc., 622 F.2d 179, 182 (5th Cir. 1980) (citations omitted). Because
that is not the case here, leave to amend to allege a First Amendment violation
under § 1983 should have been granted. Accordingly, we remand to the district
court to determine the merits of Diaz’s First Amendment claim. Because we are
remanding for the district court to address the merits of the officers’ qualified
immunity defense for the First Amendment claim, we do not address the district
court’s determination that the officers were entitled to official immunity on
Diaz’s state law claim. The district court is free to consider that claim on
remand.
                                  Conclusion
      For the foregoing reasons, we REVERSE the district court’s judgment and
REMAND for proceedings consistent with this opinion.




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