United States District Court, S.D. Texas, Houston Division
Rosenthal Chief United States District Judge
March 2019, the plaintiffs, Fredrick Bernard Lewis and Janice
Marie Close, filed the third amended complaint and moved for
leave to assert claims against two new defendants, the
University of Texas Medical Branch, commonly called UTMB, and
a licensed mental-health counselor, Sheri Nichols-Woodward.
(Docket Entry Nos. 97, 98). Owen Murray, Virginia Lovell, and
Michael Utley opposed the motion and argued that the court
should deny leave because the applicable limitations periods
bars the claims. (Docket Entry Nos. 104, 105).
careful review of the proposed amended complaint, the motion
and response, the record, the applicable law, and the
arguments presented at the hearing, the plaintiffs'
motion for leave to add new parties is granted. The reasons
are explained in detail below.
relevant facts are laid out in this court's December 2018
Memorandum Opinion and Order. In July 2016, Lewis killed
himself while in custody at the Jim Ferguson Unit of the
Texas Department of Criminal Justice. (Docket Entry No. 75 at
16). In February 2018, his parents, Fredrick Bernard Lewis
and Janice Marie Close, sued the Texas Department of Criminal
Justice, UTMB, and 27 medical personnel, asserting Eighth and
Fourteenth Amendment claims based on the denial of medical
treatment. (Docket Entry No. 12). In May 2018, the plaintiffs
voluntarily dismissed their claims against UTMB, without
prejudice. (Docket Entry No. 15).
December 2018, the court granted the defendants' motions
to dismiss the claims against medical staff Cheryl A. Lang,
Joshua McDonald, Terri B. Daigle, Michael W. Utley, Chuks
Mazi, Megan L. Harvison, Virginia Lovell, Tamekka D. Henry,
Allison Lechler, Jane M. Muchoki, Stephanie Terry, Goldie R.
Jones, and Rena N. Simmons, and the claims against other
nurses and physician assistants, with leave to conduct
limited discovery and to amend their complaint before March
20, 2019. (Docket Entry Nos. 84, 95). The court denied
Murray's and Linthicum's motions to dismiss the
plaintiffs' Eighth Amendment claims. (Id.).
March 2019, the plaintiffs filed a third amended complaint
and moved for leave to assert claims against UTMB and Sheri
Nichols-Woodward under the Eighth and Fourteenth Amendments,
the Americans with Disabilities Act, and the Rehabilitation
Act. (Docket Entry Nos. 97, 98). The defendants argued that
the statute of limitations barred the claims. (Docket Entry
Nos. 104, 105). The plaintiffs agree that the limitations
period has expired, but they argue that the circumstances
provide the court with a basis to equitably toll the
limitations period. (Docket Entry No. 104 at 8).
plaintiffs must show good cause to amend the complaint to
assert claims against new parties. The indicated in the
initial pretrial conference that no new parties were needed.
United States ex rel. Bias v. Tangipahoa Par. Sch.
Bd., 816 F.3d 315, 328 (5th Cir. 2016). The court may
consider: “(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.” Id. at 328 (quoting S&W
Enters., LLC v. S. Tr. Bank of Ala., N.A., 315 F.3d 533,
535 (5th Cir. 2003)); see also Plains Cotton Coop.
Ass'n v. Gray, 672 Fed.Appx. 372, 377 (5th Cir.
the plaintiffs have shown good cause, the court must deny
leave to amend if the proposed claims against the new parties
could not succeed based on the well-pleaded complaint
allegations, viewed in the light most favorable to the
plaintiff. Legate v. Livingston, 822 F.3d 207, 211
(5th Cir. 2016); Thomas v. Chevron U.S.A., Inc., 832
F.3d 586, 590 (5th Cir. 2016); City of Clinton v.
Pilgrim's Pride Corp., 632 F.3d 148, 152-53 (5th
Cir. 2010); Rio Grande Royalty Co. v. Energy Transfer
Partners, 620 F.3d 465, 468 (5th Cir. 2010). Time-barred
claims cannot succeed. Washington v. City of
Gulfport, 351 Fed.Appx. 916, 918 (5th Cir. 2009);
Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir.
the limitations period ran from when Lewis died in July 2016,
the newly asserted claims are barred unless the court finds a
basis to equitably toll the limitations period, as the
plaintiffs concede. See Tex. Civ. Prac. & Rem.
Code § 16.003(a); Piotrowski v. City of Hous.,
237 F.3d 567, 576 (5th Cir. 2001); Frame v. City of
Arlington, 616 F.3d 476, 488-89 (5th Cir. 2011);
Hickey v. Irving Indep. Sch. Dist., 976 F.2d 980,
982-83 (5th Cir. 1992); see also Heilman v. City of
Beaumont, 638 Fed.Appx. 363, 366 (5th Cir. 2016). The
plaintiffs have “the burden to provide justification
for equitable tolling.” Granger v. Aaron's,
Inc., 636 F.3d 708, 712 (5th Cir. 2011).
may toll a limitations period if its application would be
“inequitable” under the circumstances. Balle
v. Nueces Cty., 690 Fed.Appx. 847, 851 (5th Cir. 2017)
(quoting Lambert v. United States, 44 F.3d 296, 298
(5th Cir. 1995)). Both Texas and federal courts
“sparingly” apply equitable tolling. Myers v.
Nash, 464 Fed.Appx. 348, 349 (5th Cir. 2012).
“Traditional equitable principles preclude a court from
invoking equitable tolling . . . when the party seeking
relief has an adequate legal or statutory remedy to avoid the
consequences of the statute of limitations.”
Id. at 299.
plaintiffs contend that they have good cause for their delay
and a basis for equitable tolling because they filed an Open
Records Request for Lewis's mental-health records in
2016. They did not receive all the records that they sought,
including records showing Lewis's 45 meetings with
Nichols-Woodward, until after the limitations period expired.
The defendants argue that the plaintiffs were not diligent in
seeking the records in 2016 because their Open Records
Request did not include psychotherapy notes or specify which
documents they sought.