United States Court of Appeals
                                                                           Fifth Circuit
                                                                         F I L E D
                                                         January 9, 2004
                            UNITED STATES COURT OF APPEALS
                                                                     Charles R. Fulbruge III
                                          FIFTH CIRCUIT                      Clerk
                                         _________________

                                            No. 03-50005
                                         _________________


FREDRICK PLUET, through Sandra L. Hardeman as next friend and representative of the estate of
the deceased


                                Plaintiff - Appellant,

versus


MARGO FRAZIER, ET AL,


                                Defendants


MARGO FRASIER, Sheriff; APRIL SMITH, Registered Nurse; DAVID ARTHUR LARSON,
Registered Nurse; MARY JO BARNES, Registered Nurse; R GOWER, Registered Nurse; M
FITZSIMMONS, #466; K MOORE, #1670; J GOULD, #875; GILLISPIE, Sergeant; DICKMANN,
Officer; MILLER, Officer; GONZALES, Sergeant; REDPATH, Sergeant


                                Defendants - Appellees



                            Appeal from the United States District Court
                                 for the Western District of Texas



Before DAVIS and EMILIO M. GARZA, Circuit Judges, and LITTLE*, District Judge.




         *
          District Judge for the Western District of Louisiana, sitting by designation.
EMILIO M. GARZA, Circuit Judge:

       Fredrick Pluet, deceased, was arrested in Austin, Travis County, Texas and placed in the

Travis County Jail on December 26, 1999. Upon his arrival and throughout the rest of the night,

Pluet advised the jailers and medical staff that he had swallowed eight rocks of cocaine shortly before

his arrest and needed medical attention. No treatment was provided and Fredrick Pluet died from

acute cocaine toxicity. Sandra Hardeman is the managing conservator for Kenneth Pluet, a minor

child and alleged son of Fredrick Pluet. Hardeman filed suit against multiple members of the Travis

County sheriff’s department alleging violations of 42 U.S.C. §§ 1981, 1983, and 1988 (the federal

Civil Rights Statutes) and various state laws. The defendants offered to settle. As part of the

settlement negotiations, the parties agreed that Kenneth Pluet would undergo genetic paternity

testing. This testing conclusively demonstrated that Fredrick Pluet was not Kenneth Pluet’s

biological father. The defendants moved for summary judgment alleging that, in light of the genetic

test results, Hardeman did not have standing. The district court found that Hardeman did not have

standing to assert the federal claims in her complaint. Based upon that finding, the district court

concluded that it lacked jurisdiction over the case, granted defendants’ motion for summary

judgment, and dismissed Hardeman’s complaint without prejudice. Hardeman then filed a motion for

new trial, which the district court denied. Hardeman appeals the district court’s grant of the

defendants’ summary judgment motion.1


       1
         Hardeman’s notice of appeal only challenges the district court’s ruling on the motion for
new trial, however, this court will hear the appeal from the district court’s grant of defendants’
motion for summary judgment in this case. “[I]f from the notice of appeal itself and the subsequent
proceedings on appeal it appears that the appeal was intended to have been taken from an unspecified
judgment order or part thereof, the notice may be construed as bringing up the unspecified order for
review. Such a construction would be particularly appropriate where the order specified is a
discretionary order directly relating back to the judgment or order sought to be reviewed.” Elfman

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       We review the grant of a motion for summary judgment de novo. Texas Med. Ass’n v. Aetna

Life Ins. Co., 

, 156 (5th Cir. 1996). Summary judgment is proper when the pleadings and

evidence demonstrate that no genuine issue of material fact exists and the movant is entitled to

judgment as a matter of law. FED R. CIV. P. 56(c); Slaughter v. S. Talc Co., 

, 170 (5th

Cir. 1991). “When the defendant moves for summary judgment because of lack of standing, however,

the plaintiff must submit affidavits and comparable evidence that indicate that a genuine issue of fact

exists on the standing issue.” Cramer v. Skinner, 

, 1025 (5th Cir. 1991) The moving

party is not required to negate all elements of the non-moving party’s claims, therefore the motion

should “be granted so long as whatever is before the district court demonstrates that the standard for

the entry of summary judgment, as set forth in Rule 56(c), is satisfied.” Lujan v. Nat’l Wildlife

Fed’n, 

, 885, 

, 

(1990) (citations omitted).

        Standing under the Civil Rights Statutes is guided by 42 U.S.C. § 1988, which provides that

state common law is used to fill the gaps in administration of civil rights suits. 42 U.S.C. § 1988(a).

Therefore, a party must have standing under the state wrongful death or survival statutes to bring a

claim under 42 U.S.C. §§ 1981, 1983, and 1988. See Rhyne v. Henderson County, 

,

390-91(5th Cir. 1992) (finding that standing under Texas wrongful death and survival statutes is

incorporated into the Federal Civil Rights Statutes); Brazier v. Cherry, 

, 409 (5th Cir.

1961) (looking to Georgia wrongful death and survival statutes to determine standing under the

federal Civil Rights Statutes). Hardeman had no standing to sue under the Texas Wrongful Death

Statute (“TWDS”) or the Texas Survival Statute (“TSS”), and thus has no standing for purposes of


Motors, Inc. v. Chrysler Corp., 

, 1254 (5th Cir. 1977). In this case, the motion for a
new trial is a discretionary order, FED R. CIV. P. 59(a), concerned only with the order granting the
motion for summary judgment, and the parties have fully briefed the summary judgment issues.

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her federal claims. Hardeman does not have standing in her individual capacity under either the

TWDS or TSS because those st atutes require certain legal relationships with a decedent, which

Hardeman did not have with Fredrick Pluet. Thus, Hardeman’s standing to sue under the TWDS or

the TSS derives from either Kenneth Pluet or from Fredrick Pluet’s estate. For Hardeman to have

standing, either Kenneth Pluet had to have standing or Hardeman had to be authorized to pursue

claims on behalf of the estate.

       Kenneth Pluet does not have standing under the TWDS because he is not the biological child

of Fredrick Pluet. The TWDS provides a cause of action for the benefit of surviving children and

parents of the deceased. TEX. CIV. PRAC. & REM. CODE ANN. § 71.004(a) (Vernon 1997); see also

Brown v. Edwards Transfer Co., 

, 223 (Tex. 1989) (“Wrongful death benefits attach

to those classes of persons identified by the Act who suffer injury as a result of the death; wrongful

death benefits do not belong to the decedent’s estate.”). To recover under the TWDS, an illegitimate

child must establish biological paternity by clear and convincing evidence. See 

; Garza v. Maverick Mkt., Inc., 

, 275-76 (Tex. 1989). The genetic test

provided clear and convincing evidence that Kenneth Pluet was not the biological child of Fredrick

Pluet. Consequently, Kenneth Pluet does not have standing under the TWDS.

       Under the TSS, “[a] personal injury action survives . . . in favor of the heirs, legal

representatives, and estate of the injured person.” TEX CIV. PRAC. & REM. CODE ANN. § 71.021(b)

(Vernon 1997); see Russell v. Ingersoll-Rand Co., 

, 345 (Tex. 1992). The TSS

differs from the TWDS in that the TSS preserves a claim for the estate rather than creating a new

cause of action for those surviving the decedent. See Avila v. St. Luke’s Lutheran Hosp., 

, 857 (Tex. App.–San Antonio 1997, writ denied) (Rickoff, concurring) (noting that a statutory


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survival action differs from a wrongful death action because in a survival action the “recovery

represents the injuries the decedent personally suffered”); Harris County Hosp. Dist. v. Estrada, 

, 764 (Tex. App.–Houston [1st Dist.] 1993, writ denied) (“The survival action is the

estate’s claim for personal injuries . . . .”).

        Unlike the TWDS, Texas does not require a biological relationship to exist between the

deceased and the heir as a prerequisite for recovery under the TSS. Wilson v. Estate of Williams, 

, 650 (Tex. App.–Waco 2003, no pet.) (“[W]e conclude that [the child] did not need to

establish an actual ‘biological’ link to . . . be entitled to inherit from [his presumed father].”).

However, Hardeman failed to present to the district court any argument or evidence sufficient to raise

a material issue of fact regarding Kenneth Pluet’s standing under the TSS.

        Hardeman asserts, in this appeal, that the statement of paternity that Fredrick Pluet executed

in 1996 is sufficient to establish Kenneth Pluet as Fredrick Pluet’s heir for purposes of the TSS under

section 42(b) of the Texas Probate Code, TEX. PROB. CODE ANN. § 42(b) (Vernon 1999). This

argument, however, was not made to the district court. We will not disturb t he district court’s

judgment based upon an argument presented for the first time on appeal. See Vogel v. Veneman, 

, 733 (5th Cir. 2002). A party raising an issue on appeal must have raised it before t he

district court “to such a degree that the trial court may rule on it.” Matter of Fairchild Aircraft

Corp., 

, 1128 (5th Cir. 1993).2 Thus, Hardeman failed to establish that Kenneth Pluet


        2
           Hardeman did argue to the district court, in her motion for a new trial, that the 1996
statement of paternity established paternity for purposes of Texas family law. However, the district
court did not have sufficient opportunity to consider this argument in its summary judgment ruling
because it was not presented to the district court until after the entry of final judgment. “Motions for
a new trial or to alter or amend a judgment must clearly establish either a manifest error of law or fact
or must present newly discovered evidence. These motions cannot be used to raise arguments, which
could, and should, have been made before the judgment issued. Morever, they cannot be used to

                                                  -5-
had standing under the TSS.

       In addition to claiming standing as a representative of Kenneth Pluet, Hardeman also claims

she had standing as a representative of Fredrick Pluet’s estate itself. Although Fredrick Pluet’s estate

would have standing under the TSS to pursue his 28 U.S.C. § 1983 claims, at the time she filed her

complaint, Sandra Hardeman was not the administrator of Fredrick Pluet’s estate. Hardeman filed

her initial complaint and her amended complaint as “the guardian of Kenneth Jerome Pluet, the son

and only heir of Fredrick Jerome Pluet.” However, the complaint also provided that Hardeman was

“suing on behalf of the estate of Fredrick Jerome Pluet and representing the only living heir of

Fredrick Jerome Pluet,” and that she “files this lawsuit as next friend and on behalf of the estate of

Fredrick Jerome Pluet.” Although Hardeman now claims to represent all of Fredrick Pluet’s heirs,

including his mother, Hardeman did not include any of these parties in her complaint and did not

demonstrate that she had authority to file a complaint on behalf of any alleged heir other than Kenneth

Pluet. Additionally, although the complaint alleged that Hardeman was filing on behalf of Fredrick

Pluet’s estate, Hardeman did not file the necessary motion to be named the administrator of Fredrick

Pluet’s estate until August 8, 2002))after receiving the results of the paternity test and almost eight




argue a case under a new legal theory.” Simon v. United States, 

, 1159 (5th Cir.
1990). Furthermore, executing a statement of paternity has different effects under Texas family law
and Texas probate law. See Seyffert v. Briggs, 

, 627 (Tex. App.–Texarkana 1987,
writ ref’d n.r.e.) (noting that the purpose served by a statement of paternity and the effect of the
statement’s execution differ between the Texas Family Code and the Texas Probate Code).
Hardeman never discussed the effect of the 1996 statement of paternity under the Texas Probate
Code in her motion for a new trial. Thus, even if the family law argument had been timely raised,
Hardeman’s legal argument, based upon the Texas Probate Code, is still an entirely new legal theory
raised for the first time on appeal and is accordingly waived.

                                                  -6-
months after filing her complaint.3 Consequently, Hardeman did not have the authority to file a

complaint on behalf of the estate at the time she filed her initial and amended complaints. See Soc’y

of Separationists, Inc. v. Herman, 

, 1288 (5th Cir. 1992) (requiring a plaintiff to

demonstrate that she has standing to sue at the time her complaint is filed).

       Hardeman failed to raise any genuine issue of material fact regarding Kenneth Pluet’s

standing, and she has shown no other basis to claim standing in this case. The district court judgment

granting the defendants’ motion for summary judgment and dismissing this cause of action without

prejudice is AFFIRMED.




       3
         Hardeman relies on Lovato v. Austin Nursing Ctr., Inc., 

(Tex. App.–Austin,
2003, no pet.), to argue that her subsequent application to be the administrator of Fredrick Pluet’s
estate relates back to her original complaint filed on behalf of Kenneth Pluet as sole heir. See 

Lovato, however, is distinguishable from this case. In Lovato, the party seeking to relate back
was already one of the heirs to the estate and had standing as such. 

Furthermore, in
Lovato the party actually became the administrator of the estate and amended her complaint to reflect
that fact. 

case, Hardeman did not have standing at the time of her complaint, did not apply
to become the administrator of the estate until after learning the results of Kenneth Pluet’s paternity
test, and never amended her complaint to show that she was bringing the action as the administrator
of the estate. A party must have standing at the time the complaint is filed.            See Soc’y of
Separationists, Inc. v. Herman, 

, 1288 (5th Cir. 1992). Hardeman did not meet that
requirement.

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