# United States Court of Appeals **f or 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 Case: 22-10244 Document: 00516881226 Page: 1 Date Filed: 09/01/2023No. 22

- 10244 c/w No. 22

- 10718

2 **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 The original opinion is **WITHDRAWN** , and the following opinion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 Ta rrant 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 und er 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 w ere “ 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 no thing 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* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 22-10244 Document: 00516881226 Page: 2 Date Filed: 09/01/2023No. 22

- 10244 c/w No. 22

- 10718

3 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. S he appeals the district court’s (a) refusal to allow her to amend her co mplaint 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 omitte d). 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. More over , the district court
also justifiably denied the request to amend because it did not include the Case: 22-10244 Document: 00516881226 Page: 3 Date Filed: 09/01/2023No. 22

- 10244 c/w No. 22

- 10718

4 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 b etter. 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 s hown 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; th e 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