### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-40624

DERRICK NEWMAN, Plaintiff - Appellant,
v. FRANK C. COFFIN, JR.; JAMES KYLE HAYES; CITY OF BEAUMONT, Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:10-CV-795

Before BENAVIDES, STEWART, and GRAVES, Circuit Judges. PER CURIAM: * Derrick Newman filed a lawsuit challenging his detention by officers from the City of Be a umont Police Department. While Newman alleged that many defendants were liable, the only issue before us on this appeal relates to the section 1983 claims Newman brought against the three a p p e llees in this proceeding: Frank C. Coffin, Jr., James Kyle Hayes, and the City of Beaumont (collectively, the “municipal defendants”). We must deci d e whether Newman filed his section 1983 c l a i ms before the statute of limitations r an. Because we U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D March 15 , 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-40624 Document: 00511789817 Page: 1 Date Filed: 03/15/2012No. 11-40624

conclude that the statute of limitations had run before Newman filed his claims, we AFFIRM the district court’s judgment. I. On August 24, 2007, Newman and Mario Cole (“Mario”) were passengers in a vehicle driven by Willi e Cole (“Willie”). The vehicle was stopped by Beaumont Police Officer Jason J. Torres for failing to properly yield to oncoming traffic while making a turn. During the stop, Torres learned that Mario had an outstanding warrant for unpa i d t r a f f i c tickets. Mario resisted the efforts of Torres and Officer John David Brown, who had arrived on the sc ene, to arrest him. Newman and Willie each stepped out of the car, for the purpose, Newman contends, of calming Mario down. Several other police officers–Officers Charles J. Duchamp III, James Cody Guedry, and David Todd Burke–arrived on the scene. Guedry ordered Newman to get behind the vehicle and submit to a pat down. During this search, Burke allegedly beat Newman with a wooden baton 13 times and Guedry used a taser

on Newman three times, twice at the direction of Torres. After Newman fell to the ground, he was handcuffed and Guedry dragged him across the road to the sidewalk, placing his boot on Newman’s back. On November 17, 2008, Newman commenced a state law action in Texas state court against Guedry, Duchamp, Burke, Torres, and Brown. At that point, Newman had not yet asserted any claims against the municipal defendants. In the dis c ove ry p h a s e o f thi s p ro c e e din g , N ewman submitted open records requests to the City, including requests to Torr e s a n d to Chief Coffin of the Beaumont Police De p a r t m ent (“BPD”) on July 3, 2008; to Lieutenant George Christian Schuldt of the BPD on November 29, 2009; and another requ est to Torres on May 19, 2010. Newman also deposed Coffin on May 14, 2010, May 21, 2010, and June 17, 2010; Beaumont’s City Manager Hayes on May 14, 2010; Guedry on March 16, 2010; Brown on March 17, 2010; and Torres on March 17, 2010

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N e w m an’ s s e c tion 1983 claim against the municipal d e f e n d ant s ch all e n ge s the BPD’s “zero to l erance policy,” which Newman argues is unconstitutional. He did not learn of the zero tolerance policy until it wa s publicly discussed at a criminal trial. Because of their detention of Newman, Burke and Guedry were tried separately for the crime of official oppre s sion. At Guedry’s trial in November 2010, Schuldt testified that department policy requires police officers to show zero tolerance t o w a r ds any criminal activity in high-crime areas. In

areas that are not classified as high crime, conversely, police officers have discretion not to issue citations for minor offenses. The area in which Newman

was detained was considered a high-crime area. Newman contends that the zero tolerance policy is unconstitutionally “directed at citizens such as” Newman. After learning of the zero tolerance policy, Newman promptly undertook discovery to investigate its relationship to his cause of action. Newman deposed Officer Shawn Kevin Tolley, the BPD’s expert on police procedures, on December 7, 2010. Tolley explained that high-ranking officers mee t weekly to designate

zero tolerance areas based on previous crime statistics. In these zero tolerance areas, patrols are more frequent and enforcement is stricter. On Nove m b e r 17, 2010, Newman filed an amended complaint in state

c ourt adding claims pursuant to 42 U.S.C. § 1983. The case was removed t o federal court on December 8, 2010. N e w man then filed a First Amended Complaint adding claims against the municipal defendants in their official and individual capacities on January 3, 2011. This complaint alleged constitutional violations based on the BPD’s zero tolerance policy. 1

S pec ifi call y, the Firs t Ame ndedCom plai nt allege s the fol low ing: 1

Polic e off

icer s em plo yed and cont roll ed by the City of Beaum on t h a ve, on mul tip le occ asi ons , subject ed cit izens of the City to uncon st itut ional act ions , inclu ding se arc hes , arr es ts , and det enti ons wi thou t pr obable caus e, and the use of exces sive for ce in the cour se of mak ing arr es ts

. The De fen dant pol ice off icer s in this c asevio late d suc h f ede ral cons tit utio nal right s of the plai ntif f. 3 Case: 11-40624 Document: 00511789817 Page: 3 Date Filed: 03/15/2012No. 11-40624

The municipal defendants moved to dismiss on several grounds, including the running of the statute of limitations. Newman responded to the motion to dismiss and filed a Second Amended Complaint. The district court granted the 2 municipal defendants’ motion to dismiss on May 4, 2011, ruling that Newman’s

ac tio n a g ainst the municipal defendants was barred by the statute of limitatio n s . After the district court finalized its judgment under Rule 54(b) on May 19, 2011, Newman filed a timely notice of appeal. This appeal followed. II. A. This court reviews a district court’s order granting a motion to dismiss de

novo. Castro v. Collecto, Inc., 634 F.3d 779, 783 (5th Cir. 2011 ). B. “A statute of limitations may support dismissal under Rule 12(b)(6) where it is evident from th e p laintiff’s pleadings that the action is barred and the pleadings fail to raise some basis for tolling or the like.” Jones v. Alcoa, Inc. , 339 F.3d 359, 366 (5th Cir. 2003). Whether a plaintiff exercised due dilig e n c e in a particular case is a question of fact, and its resolution depends in each case upon the circumstances f

a ced by the plaintiff. Sumner v. Land & Leisure, Inc. , 664 F.2d 965, 970 (5th Cir. 1981).

The City o f B e a u mo nt, De fen dant Coff in, as Chief of Polic e for the City, and De fen dant Ha yes, as City Man ager for the City of Beaum ont, have ado pt ed and im pl e m ente d an info rm al, unw rit ten pol icy wh ere by the pol ice off icer s of the City are ins tru cte d, enco uraged , and pe r m i t t e d to engage in uncon st itut ional cond uct of the ki nd des cribed in the pr ece ding par agrap h, dir ect ed es pec ially at cit izens suc h as the Plaint iff in the area of the City in wh ich the act s giving ris e to this ac tio n o ccu rre d.

While man y of its allegat ions rep eat the allegat ions of the Firs t Ame nded Com plai nt, 2 the Sec ond Ame nded Com plai nt add s that the zero tol eran ce pol icy of the BPD “is car ried out mo re fr equent ly in area s of the City wi th high Afr ican- A m e r i c a n p opul atio ns, suc h as the Sout h End , wh erethe events d es cribedint he pr ece ding par agrap hs occ urr ed, t han in area s of the City wi th low er pop ulati ons of Af ric an-Am eric ans .” 4 Case: 11-40624 Document: 00511789817 Page: 4 Date Filed: 03/15/2012No. 11-40624

Federal law controls the date of accrual for actions brought under section 1983. Piotrowski v. City of Hous., 51 F.3d 512, 516 n.10 (5 t h C i r . 1 995) [Piotrowski I

]. This court has explained the governing law for deciding when causes of action brought under section 1983 accrue: Under federal law, the [l i m i tations] period begins to run the moment the plaintiff becomes aware that he has suffered an injury or has sufficient inf

o r m a t i o n to know that he has been injured. A plaintiff’s awareness encompasses two elements: (1) the existence of the injury; and (2) causation, that is, the connection between the injury and the defendant’s actions. A plaintiff need not realize that a legal cause of action exists; a plaintiff need only know the facts that would support a claim. Moreover, a p l aintiff need not have actual knowledge if the circumstances would lead a reasonable person to investigate further.
Piotrowski I

, 51 F.3d at 516 (internal citations and quotation marks omitted); see also Piotrowski v. City of Hous. , 237 F.3d 567, 576 (5th Cir. 2001) [Piotrowski II ]. Put another way, “the limitations period commences when the aggrieved party has either knowledge of the violation or notice of facts which, in the exercise of due diligence, would have led to actual knowledge thereof.” Jensen v. Snellings , 841 F.2d 600, 606 (5th Cir. 1988) (internal quotation marks omitted). Because the statute of limitations for actions brought under section 1983 is governed by the statute of limitations for personal injury actions in the state where the challenged conduct occurred, Texas’s two-year statute of limitations applies to this case. See, e.g., Piotrowski I , 51 F.3d at 515 n.5. C. Newman contends that the district court erroneously conc luded that his

c a u s e o f a c tion accrued on the date he was detained. As Newman points out,

causes of action do not accrue until the plaintiff learns both that he was injured and who cause d t h e injury. See Piotrowski I , 51 F.3d at 516. While Newman learned that he was injured on the day he was forc ibly detained, he maintains

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that he only lear n ed who caused his injury–that is, the municipal defendants, since they are res p o n s ib l e for the zero tolerance policy–when Schuldt testified during Guerdy’s criminal trial. Therefore, he posits that his cause of action did not accrue until the date of the criminal trial. Fo r th e p urp o ses of deciding when a statute of limitation accrues, however, actual knowledge is not controlling. Our precedent establishes that individuals who suffer an injury have a duty to exercise due diligence in learning the facts underlying their injury. Jensen , 841 F.2d at 606. Thus, we must decide to what extent Newman’s knowledge on the date of the detention triggere d a d u t y to engage in a dili g e nt investigation of the circumstances surrounding his detention. 3 Here, we agree with the d i s t r i c t court’s determination that, on the date of his arrest, Newman’s knowledge triggered a duty of inquiry that should have led him to learn of BPD’s zero tolerance policy. Even a cursory investigation into police procedures in this case likely would have uncovered the existence of the

zero tolerance policy. This investigatio n c o uld have taken the form of interrogatories or depositions in which Newman’s counsel asked police department offi c i a l s which procedures governed the dispatch of officers. The 4

ease with which Newman was able to elicit the required information fro m Officer

Becaus e N e w m a n d o es not cont end that the mun icip al def enda nts engaged in 3 fr audul ent conc ealm ent of rele vant evide nce, we need not cons ide r wh ethe r the st atut e of lim itat ions onN ew man ’s c laim s has be en equit ably tol led

. Piotrow skiI , 51 F. 3d at 516. While neit her par ty me ntio ns this p o i n t i n t h eir brie fs , the rec ord sho ws that 4 New man did , in fac t, se ek info rm atio n rela ting to wh ethe r the off icer s of the BPD we re act ing pur sua nt to off

icia l pol icy. In the ide ntic al inte rro gator ies he add res se d to Torr es , Du cham p, Brow n, Burk e, and Gu edry, New man ask ed wh ethe r the off i c e r s w e r e act ing pur sua nt to off icia l pol icy. New man ’s inte rro gator ies we re not pr ope rly phr ase d, how ever, so the off icer s app rop riat e ly ref

use d to res pond

. New man wr ote , “If you cont end that the off icer s act ed
acc ord ing to the estab lis hed polic ies and custo ms of the Beaum ont Poli ce D epa rtm ent atthe tim e of De rri ck New man [’ s] arr es t on August 24, 2007. ” The off icer s each res pond ed, in par t, that “[ t] his app ears to be a st atem ent and no ques tio n is app aren t. ” Given the im pr ope r for m of the ques tio ns, we do not tak e thes e inte rro gator ies as evide nce of New man ’s due dil igence

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Tolley after lear ning of the zero tolerance policy tends to show that such an investigation would not have been especially difficult, had Newman undertaken to understand the policies of the BPD. Under these circumstances, Newman’s arrest triggered a duty to investigate his injury that sho u l d h av e led him to learn of the zero tolerance policy. III. Accordingly, we AFFIRM the district court’s judgment.

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