IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-41307

Summary Calendar

JIMMY DON MATHEWS,

Plaintiff-Appellant

v.

BOWIE COUNTY, TEXAS; JAMES PRINCE; COMMUNITY EDUCATION 

CENTERS, INCORPORATED; CIVIGENICS, INCORPORATED,

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 5:12-CV-82

Before PRADO, OWEN, and GRAVES, Circuit Judges.

PER CURIAM:*

Jimmy Don Mathews filed suit pursuant to 42 U.S.C. § 1983 against 

Bowie County, Texas; Sheriff James Prince; Community Education Centers, 

Inc. (CEC); CiviGenics, Inc.; and unknown “John Doe” defendants. In his 

second amended complaint, he alleged that unknown guards at Bowie County 

Jail used unreasonable and excessive force against him. He further contended

* 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.

United States Court of Appeals

Fifth Circuit

FILED

April 22, 2015

Lyle W. Cayce

Clerk

 

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No. 13-41307

that he sought medical treatment from injuries sustained from the alleged use 

of force, but received treatment only after an unreasonable delay, resulting in 

severe physical and mental pain. The district court, after briefing by the 

parties, dismissed Mathews’s claims against Bowie County, Sheriff Prince, 

CEC, and CiviGenics pursuant to Federal Rule of Civil Procedure 12(b)(6) for 

failure to state a claim. The district court permitted the claims against the 

unknown “John Doe” defendants to proceed. Mathews now appeals from the 

dismissal of his § 1983 and state law claims against the named defendants.

We review de novo a dismissal under Rule 12(b)(6). Bass v. Stryker 

Corp., 669 F.3d 501, 506 (5th Cir. 2012). “To survive a Rule 12(b)(6) motion to 

dismiss, the plaintiff must plead ‘enough facts to state a claim to relief that is 

plausible on its face.’” In re Katrina Canal Breaches Litigation, 495 F.3d 191, 

205 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007)). A dismissal for failure to state a claim will be affirmed “if, taking the 

plaintiff’s allegations as true, it appears that no relief could be granted based 

on the plaintiff’s alleged facts.” Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 

2009) (internal quotation marks and citation omitted).

A governmental entity or municipality may be held liable under § 1983 

only if official policy or custom caused the deprivation of a constitutional right. 

Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). 

The plaintiff must prove that the policy or custom in question was adopted 

with “deliberate indifference” and that there was “a direct causal link between 

the municipal action and the deprivation of federal rights.” In re Foust, 310 

F.3d 849, 862 (5th Cir. 2002) (internal quotation marks and citation omitted). 

Thus, the plaintiff must prove (1) the existence of a policymaker; (2) the 

existence of a policy or custom; and (3) a violation of his constitutional rights 

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that resulted from the policy or custom. Hampton Co. Nat’l Surety, LLC v. 

Tunica Cnty., 543 F.3d 221, 227 (5th Cir. 2008).

Mathews failed to state a claim under § 1983 against any of the named 

defendants. His second amended complaint did not allege that the custom or 

policy in question was adopted with deliberate indifference. Rather, a plain 

reading of his complaint reflects that his allegations of deliberate indifference 

are confined only to the actions of the unknown correctional officers. Thus, the 

district court properly dismissed his § 1983 claim against the named 

defendants. In re Foust, 310 F.3d at 862. Furthermore, we have consistently 

held, as is the case here, that “[a]llegations of an isolated incident are not 

sufficient to show the existence of a custom or policy.” Fraire v. City of 

Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992). In addition, to the extent that 

Mathews even attempts to allege a custom or policy, his conclusory allegations 

that his treatment violated the Texas Administrative Code are insufficient to 

establish § 1983 liability. See Brown v. Texas A&M University, 804 F.2d 327, 

335 (5th Cir. 1986). “Such action may constitute a breach of contract or 

violation of state law, but unless the conduct trespasses on federal 

constitutional safeguards, there is no constitutional deprivation.” Id. Finally, 

as to the dismissed state law claims of assault and battery, Mathews does not 

address this issue on appeal, and it is therefore abandoned. See United States 

v. Green, 964 F.2d 365, 371 (5th Cir. 1992).

Mathews also argues on appeal that the district court erred by denying 

him leave to file a third amended complaint. We review a district court’s denial 

of a motion to amend a pleading for abuse of discretion. See United States v. 

Riascos, 76 F.3d 93, 94 (5th Cir. 1996). The district court based its denial on a 

several factors, including the futility of the proposed amendments, undue 

delay, repeated failure to cure deficiencies by amendments previously allowed, 

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and undue prejudice. Having reviewed the pleadings, we conclude that the 

district court acted within its discretion, as the proposed amendments were 

futile. See Martin’s Herend Imports, Inc. v. Diamond & Gem Trading United 

States of America Co., 195 F.3d 765, 771 (5th Cir. 1999). Furthermore, the trial 

court properly considered other relevant factors, such as the “unexplained 

delay” in adding additional claims and the fact that the circumstances 

underlying the amended complaint were known to Mathews when the original 

complaint was filed. See In re Southmark Corp., 88 F.3d 311, 316 (5th Cir. 

1996). 

For the foregoing reasons, the judgment of the district court is 

AFFIRMED. 

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