United States District Court, S.D. Texas, Houston Division
P. ELLISON, UNITED STATES DISTRICT JUDGE
a § 1983 case in which original plaintiffs Sylvia Gone
("Ms. Gone") and Esmerelda Alejandro ("Ms.
Alejandro") seek redress for alleged harms associated
with a traffic stop that quickly escalated into
confrontation. After a series of amended complaints, the
plaintiffs in this action are now Sylvia Hernandez ("Ms.
Hernandez"), as the administrator of Ms. Gone's
estate, and Ms. Alejandro. (Doc. No. 57.) Defendant police
officers ("Defendants") have filed a Motion for
Summary Judgment. (Doc. No. 58.)
February 27, 2017, Defendants served timely requests for
admission to both original plaintiffs. (Doc. No. 58, Exhibit
#7.) To date, Ms. Alejandro has neither responded to those
requests nor moved to withdraw her deemed admissions -
despite ample opportunity afforded by the Court. Pursuant to
Federal Rule of Civil Procedure 36, Ms. Alejandro's
deemed admissions must stand. Given those admissions, Ms.
Alejandro cannot establish a claim against any defendant in
this case and summary judgment must be granted against her.
different reason, Ms. Hernandez's survival claim also
fails on the law. Specifically, it is barred by the statute
of limitations. "While state law determines the statute
of limitations [in § 1983 actions], federal law controls
when a cause of action accrues, and it begins to run from the
moment the plaintiff becomes aware that he has suffered an
injury or has sufficient information to know that he has been
injured." Bell v. Children's Protective
Services, 547 Fed.Appx. 453, 456 (5th Cir. 2013). In
this case, there is no dispute that Ms. Hernandez's
survival claims accrued on April 19, 2014.
two-year statute of limitations for personal injury actions
applies to § 1983 claims filed in the state."
King-White v. Humble Indep. Sch. Dist., 803 F.3d
754, 759 (5th Cir. 2015). Plaintiffs argue that the proper
statute of limitations is four years and not two, citing
Webb v. Livingston, 2017 WL 2118969 (S.D. Tex. May
16, 2017). In Webb, this Court held that the
four-year statute of limitations applied because "heirs
at law can maintain a survival suit during the four-year
period the law allows for instituting administration
proceedings if they allege and prove that there is no
administration pending and none necessary." Id.
at *2 (citation omitted). In Webb, the Court found
that no administration was necessary because the plaintiffs
had submitted a family settlement agreement executed by all
of the decedent's heirs. Id. The Webb
heirs specifically demonstrated that "they [had]
arranged to pay the debts of the estate in their family
settlement agreement." Id. at 3.
there is no such family arrangement. More importantly,
records from the Harris County Probate Court preclude our
finding that no administration is pending or necessary - to
the absolute contrary, an administration is in progress.
(Doc. No. 58-23.) Because Ms. Hernandez cannot "prove
that there is no administration pending and none necessary,
" the two-year - not the four-year - statute of
limitations applies. Webb, 2017 WL 2118969 at *2.
question, then, is whether Ms. Hernandez's survival
claims were filed within the requisite two year period - that
is, between April 19, 2014 and April 19, 2016.
original complaint was filed in March 2016. (Doc. No. 1.) In
that complaint, Ms. Gone (a decedent at the time of filing)
purportedly sought recovery directly from Defendants. A
survival claim by Ms. Hernandez was not properly pled until
Plaintiffs filed the live complaint (styled as the
"Second Amended Complaint" but in fact the fourth
pleading) in December 2017. (Doc. No. 57.) Ms. Hernandez
argues that the survival claims contained in the live
complaint relate back to the filing date of the original
Rule of Civil Procedure 15(c)(1)(B) concerns the relation
back of pleading amendments. It states:
An amendment to a pleading relates back to the date of the
original pleading when ... 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
rule would, at first, appear to apply here, as the underlying
conduct in the live complaint is the same as that in the
original complaint. The problem is that the two complaints
were each pled by a different plaintiff, the first by Ms.
Gone and the second by Ms. Hernandez, and constitute
different legal claims. The first was a purported action for
direct recovery by a deceased person and the latter is a
survival action by the administrator of that persons'
Fifth Circuit has commented on the effect of a pleading
amendment that adds new plaintiffs:
[W]hen it comes to a late effort to introduce a new party,
something else is added. Not only must the adversary have had
notice about the operational facts, but it must have had fair
notice that a legal claim existed in and was in ...