United States Court of Appeals

for the Fifth Circuit ___________ 

No. 22-10244

Consolidated with

No. 22-10718

Summary Calendar

___________ 

Shanelle Jenkins, as surviving spouse, and Representative of

the Estate of Robert Geron Miller,

Plaintiff—Appellant,

versus

Tarrant County Sheriff’s Office; Bill E. Waybourn, 

in his official capacity as Sheriff of Tarrant County, Texas; 

Tarrant County; Texas Department of Public Safety, 

Texas Rangers Division,

Defendants—Appellees.

______________________________ 

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:21-CV-910

______________________________ 

United States Court of Appeals

Fifth Circuit

FILED

September 1, 2023

Lyle W. Cayce

Clerk

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c/w No. 22-10718

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ON PETITION FOR PANEL REHEARING

Before Jones, Haynes, and Oldham, Circuit Judges.

Per Curiam: *

IT IS ORDERED that the petition for panel rehearing is 

GRANTED for the purpose of ruling on an issue overlooked in the original 

opinion. The original opinion is WITHDRAWN, and the following opinion 

is SUBSTITUTED:

Plaintiff Shanelle Jenkins’s husband unexpectedly passed away while 

he was in the Tarrant County jail. Jenkins brought suit against the 

defendants—Tarrant County, the Tarrant County Sheriff’s Office, Bill 

Waybourn in his official capacity as sheriff of Tarrant County, and the Texas 

Rangers Division of the Texas Department of Public Safety—on his behalf. 

Although her complaint admitted that she did not know the cause of, or 

circumstances surrounding, her husband’s death, she nevertheless asserted 

claims under 42 U.S.C. § 1983 for “wrongful death,” “excessive force,”

“inadequate training,” and for an “official policy or custom,” as well as a 

few state law claims.

The defendants moved to dismiss, and the district court warned 

Jenkins twice that her pleadings were “threadbare recitals of a cause of 

action’s elements, supported by mere conclusory statements.” Ashcroft v. 

Iqbal, 556 U.S. 662, 663, 129 S. Ct. 1937, 1940 (2009). Jenkins amended her 

complaint, but the changes merely added a new defendant and did nothing to 

remedy the problems. The defendants again moved to dismiss. Jenkins’s 

* Pursuant to 5th Circuit Rule 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should not be published and is not precedent except under the limited circumstances set 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 Circuit Rule 47.5.4.

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response asked for leave to amend her complaint a second time, promising 

that this time she would rectify the deficiency.

The district court refused to allow Jenkins to amend the complaint a 

second time. It dismissed Jenkins’s federal claims with prejudice and, also 

declining to exercise supplemental jurisdiction over the remaining state law 

claims, dismissed the state law claims without prejudice. It later denied her 

Rule 60(b) motion for relief from judgment, which she brought after 

presenting 252 pages of public records that she claims had been improperly 

held from her until after the final judgment. She appeals the district court’s

(a) refusal to allow her to amend her complaint for a second time and (b) the 

denial of her Rule 60(b) motion for relief.

The district court did not abuse its discretion by denying Jenkins leave 

to amend her complaint. “Except as authorized by the first sentence of Fed.

R. Civ. P. 15(a) for one amendment before service of a responsive pleading, a 

complaint may be amended only by leave of the district court, and, while such 

leave is to be freely given when justice so requires, the decision is left to the 

sound discretion of the district court and will only be reversed on appeal 

when that discretion has been abused.” U.S. ex rel. Willard v. Humana 

Health Plan of Texas Inc., 336 F.3d 375, 387 (5th Cir. 2003). The district court

concluded that allowing further amendment would be futile and cause undue 

delay, two justifications that this court has previously identified as 

“[p]ermissible reasons for denying a motion for leave to amend.” Cent. 

Laborers' Pension Fund v. Integrated Elec. Servs. Inc., 497 F.3d 546, 556 (5th 

Cir. 2007) (citation omitted). It also gave the plaintiff ample warning and 

time to fill out her threadbare complaint. After Jenkins failed to resolve the 

problem in a timely fashion, the district court could permissibly find that 

allowing further amendments was unwarranted. Moreover, the district court 

also justifiably denied the request to amend because it did not include the

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proposed second amended complaint, thereby violating the district court’s

local rules. See N.D. Tex. L. Civ. R. 15.1.

Jenkin’s Rule 60(b) motion fares no better. Rule 60(b)(2) requires 

(1) newly discovered evidence, (2) that could not have been discovered with 

reasonable diligence in time for a Rule 59(b) motion, (3) and that is material, 

controlling, or would have produced a different result. See Lyles v. Medtronic 

Sofamor Danek, USA, Inc., 871 F.3d 305, 316 (5th Cir. 2017). Jenkins fails on 

all three counts. The evidence she attempts to present is (a) medical records 

that plaintiff had unfettered access to as the plaintiff’s decedent spouse, 

45 C.F.R. § 164.510(b)(5), and (b) other public records available under the 

Texas Public Information Act. Tex. Gov’t Code Ann. § 552.001 et seq. Given 

the ease of accessing this evidence, neither should count as “newly 

discovered.” Moreover, given that Jenkins waited two years before 

beginning her investigation, she did not exercise due diligence. She claims 

that her proposed second amended complaint would have shown how the 

evidence is material or controlling—but this argument was apparently not 

made to the district court, which declined to sift through the evidence and 

determine for itself whether the evidence was material. Rule 60(b)(3) 

requires showing clear and convincing evidence of “fraud . . . 

misrepresentation, or misconduct” on the part of the opposing party. 

Montgomery v. Hall, 592 F.2d 278 (5th Cir. 1979). Jenkins alleges the public 

records agency intentionally delayed in getting her the evidence; the agency 

disagrees. We find no reason to conclude that the district court abused its 

discretion by ruling that Jenkins lacked clear and convincing evidence of 

misconduct.

The judgment of the district court is AFFIRMED.

Case: 22-10244 Document: 00516881226 Page: 4 Date Filed: 09/01/2023