Filed: Nov. 12, 2013
Latest Update: Mar. 02, 2020
Summary: Case: 13-40687 Document: 00512438274 Page: 1 Date Filed: 11/12/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 13-40687 Summary Calendar United States Court of Appeals Fifth Circuit FILED November 12, 2013 SHEILA BELL, Lyle W. Cayce Clerk Plaintiff–Appellant v. CHILDREN'S PROTECTIVE SERVICES; ELIJAH BELL; JUDGE SUZANNE SCHWAB-RADCLIFFE; S. CHRIS NALLIE-COURTNEY; SUSAN EDMONDSON; RODNEY MOTON; OFFICE OF THE ATTORNEY GENERAL; JOYCE WASHINGTON; CHERYL TRIPLETT; MARTHA LIVINGSTO
Summary: Case: 13-40687 Document: 00512438274 Page: 1 Date Filed: 11/12/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 13-40687 Summary Calendar United States Court of Appeals Fifth Circuit FILED November 12, 2013 SHEILA BELL, Lyle W. Cayce Clerk Plaintiff–Appellant v. CHILDREN'S PROTECTIVE SERVICES; ELIJAH BELL; JUDGE SUZANNE SCHWAB-RADCLIFFE; S. CHRIS NALLIE-COURTNEY; SUSAN EDMONDSON; RODNEY MOTON; OFFICE OF THE ATTORNEY GENERAL; JOYCE WASHINGTON; CHERYL TRIPLETT; MARTHA LIVINGSTON..
More
Case: 13-40687 Document: 00512438274 Page: 1 Date Filed: 11/12/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-40687
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
November 12, 2013
SHEILA BELL,
Lyle W. Cayce
Clerk
Plaintiff–Appellant
v.
CHILDREN'S PROTECTIVE SERVICES; ELIJAH BELL; JUDGE
SUZANNE SCHWAB-RADCLIFFE; S. CHRIS NALLIE-COURTNEY;
SUSAN EDMONDSON; RODNEY MOTON; OFFICE OF THE ATTORNEY
GENERAL; JOYCE WASHINGTON; CHERYL TRIPLETT; MARTHA
LIVINGSTON; RICHARD KING; CHERYL MCCARTY; JACK LAWRENCE,
Defendants–Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:13-CV-104
Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff–Appellee Sheila Bell (“Bell”) appeals the district court’s
dismissal of several federal and state law claims stemming from a state court
custody matter that was concluded in 2003. We AFFIRM.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-40687 Document: 00512438274 Page: 2 Date Filed: 11/12/2013
No. 13-40687
I. FACTUAL AND PROCEDURAL BACKGROUND
Bell and her husband, Christopher Bell, are the parents/step-parents of
six children: Lennon Brown III, Jourdan Brown, Christopher Bell, Christian
Bell, Anna Stasia Bell, and Elijah Bell. In 2001, Bell’s children were removed
from the family home because the Texas Department of Protective and
Regulatory Services 1 was concerned that the children were at risk for sexual
abuse, medical neglect, and abandonment. After a jury trial in Texas state
court, during which Bell was represented by counsel, Bell’s mother, Joyce
Washington, was granted managing conservatorship of the children in 2003.
It appears that Bell did not appeal this decision in state court.
In 2013, Bell, who is proceeding pro se, filed suit in federal district court
alleging numerous claims under both federal and state law and seeking, among
other relief, full custody of her children and $106,000,000,000 in damages. 2
Bell filed federal claims pursuant to “42 USC 1983 [sic], The Civil Rights Act
of 1984, The Discrimination Act, The False Claims Act, The ‘Whistleblower’
Act, and Failure to Protect.” She also alleged Defendants–Appellees were
“negligent,” “malicious,” acted in “bad faith” and committed and/or
“aided and abetted” others in committing one or more of the
following acts: failed to properly maintain and monitor our case
file; were negligent in destroying, concealing, or tampering with
evidence involving our case; failed to conduct a thorough and
objective investigation; failed to alert proper authorities of crimes
committed to our children “while” in State Custody; failed to
properly supervise employee’s [sic] and any other State Tort
applicable under the Texas Tort Statutory Code.
1The Texas Department of Protective and Regulatory Services is now known as
Children’s Protective Services (“CPS”). CPS is a Defendant–Appellee in this appeal.
2 Bell has previously filed four complaints in federal court, all of which alleged claims
arising from the same 2001–03 state court custody proceedings. Bell’s previous complaints
named as defendants several of the Defendants–Appellees in the instant case: Cheryl
Triplett, Martha Livingston, Richard King, Cheryl McCarty, and Jack Lawrence. All of Bell’s
previous complaints were dismissed.
2
Case: 13-40687 Document: 00512438274 Page: 3 Date Filed: 11/12/2013
No. 13-40687
The district court, adopting the magistrate judge’s Report and
Recommendation, dismissed Bell’s complaint. The court found that (1) the
Eleventh Amendment barred Bell’s claims against the Texas Attorney
General’s Office and CPS; (2) Bell’s Whistleblower Protection Act claim failed
as a matter of law because Bell was not a federal employee; (3) the statute of
limitations barred Bell’s § 1983 claim; and (4) declining to exercise
supplemental jurisdiction over Bell’s state law claims was appropriate here,
where the court had dismissed all of Bell’s claims under federal law.
On appeal, Bell alleges violations of her First, Sixth, Eighth, and
Fourteenth Amendment rights under § 1983. Bell disputes the district court’s
dismissal of her § 1983 claims on statute of limitations grounds; she argues
that CPS and other state officials fraudulently concealed information about the
state court judge who assigned custody in her family’s case and that this tolls
the statute of limitations. Bell also seeks to file a petition pursuant to the
International Child Abduction Remedies Act, 42 U.S.C. §§ 11601–10,
requesting custody of her children. Finally, Bell asserts a variety of state law
claims against Defendants–Appellees. 3
II. JURISDICTION
Bell seeks review of a final judgment of the district court. Accordingly,
this Court has jurisdiction pursuant to 28 U.S.C. § 1291.
III. STANDARD OF REVIEW
The district court granted Bell leave to proceed in forma pauperis
(“IFP”). The magistrate reviewed Bell’s complaint under 28 U.S.C.
§ 1915(e)(2)(B), which allows the court, in a case where the plaintiff is
3 Bell claims that (1) CPS failed to protect her children; (2) CPS bullied her and other
biological parents; and (3) the State of Texas and CPS lacked jurisdiction to remove her
children from the family home. Documents filed pro se are “to be liberally construed,” see
Estelle v. Gamble, 429 U.S. 97, 106 (1976), and, applying that principle here, we believe these
claims are best construed as claims raising questions of state law.
3
Case: 13-40687 Document: 00512438274 Page: 4 Date Filed: 11/12/2013
No. 13-40687
proceeding IFP, to “dismiss the case at any time if the court determines
that . . . the action or appeal—is frivolous or malicious [or] fails to state a claim
on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(i)–(ii). The
magistrate recommended dismissing Bell’s federal law claims for failing to
state a claim upon which relief can be granted and as frivolous, and the district
court adopted the magistrate’s recommendation.
We review a district court’s dismissal for failure to state a claim under
§ 1915(e)(2)(B)(ii) de novo, using the same standard we use to review a
dismissal under Federal Rule of Civil Procedure 12(b)(6). Newsome v. EEOC,
301 F.3d 227, 231 (5th Cir. 2002) (citation omitted). “We must assume that
the plaintiff’s factual allegations are true, and may uphold the dismissal of [the
plaintiff’s] claims only if it appears that no relief could be granted under any
set of facts that could be proven consistent with the allegations.”
Id. We review
a dismissal of a claim because it is frivolous pursuant to § 1915 for an abuse of
discretion.
Id. A plaintiff’s IFP complaint “may be dismissed as frivolous if it
lacks an arguable basis in law or fact. A complaint lacks an arguable basis in
law if it is based on an indisputably meritless legal theory.”
Id. (citation and
internal quotation marks omitted).
This Court reviews a district court’s “discretionary remand of
supplemental state law claims for abuse of discretion.” Giles v. NYLCare
Health Plan, Inc., 172 F.3d 332, 339 (5th Cir. 1999).
IV. DISCUSSION
At the outset, we note that, on appeal, Bell has not pressed several of the
claims that she argued before the district court. Specifically, she has not raised
on appeal any claims under “The Civil Rights Act of 1984, The Discrimination
Act, The False Claims Act, The ‘Whistleblower’ Act and Failure to Protect.”
While this Court liberally construes briefs of pro se appellants, “we also require
that arguments must be briefed to be preserved.” Yohey v. Collins, 985 F.2d
4
Case: 13-40687 Document: 00512438274 Page: 5 Date Filed: 11/12/2013
No. 13-40687
222, 225 (5th Cir. 1993) (quoting Price v. Digital Equip. Corp., 846 F.2d 1026,
1028 (5th Cir. 1988)) (internal quotation marks omitted). Bell has abandoned
the claims that she has not briefed before this Court, and we will only address
the issues argued and presented in her brief. 4 See
id. at 224–25.
A. Bell’s Claims Under 42 U.S.C. § 1983
Bell has preserved and pressed her claims under § 1983 before this
Court. She argues that the state court custody proceeding violated her rights
under the First, Sixth, Eighth, and Fourteenth Amendments. 5 The district
court found that the statute of limitations barred Bell’s claims and that no
grounds for tolling were argued or existed.
District courts may dismiss claims sua sponte when “it is clear from the
face of a complaint filed in forma pauperis that the claims asserted are barred
by the applicable statute of limitations.” Moore v. McDonald, 30 F.3d 616, 620
(5th Cir. 1994) (citation and internal quotation marks omitted). Although
there is no federal statute of limitations for civil rights violations alleged under
§ 1983, “courts construing § 1983 ‘borrow’ the forum state’s general personal
injury limitations period.” Rotella v. Pederson,
144 F.3d 892, 897 (5th Cir.
1998) (citing Owens v. Okure,
488 U.S. 235, 249–50 (1989)). While state law
determines the statute of limitations, federal law controls when a cause of
action accrues, and it begins to run “from the moment the plaintiff becomes
4We also observe that Bell did not mention any of the abandoned claims in her notice
of appeal.
5 Bell alleges that (1) CPS violated her First Amendment rights by including the name
of God in its lawsuit and choosing where her children attended church; (2) Bell was deprived
the right to a speedy trial; (3) Bell was denied the right to confront witnesses against her
because CPS relied, in part, on an anonymous call regarding the Bell/Brown children’s
welfare; (4) removing Bell’s children from her custody violated her Eighth Amendment right
against cruel and unusual punishment; and (5) various violations of Bell’s right to due
process, equal protection, and family privacy under the Fourteenth Amendment.
5
Case: 13-40687 Document: 00512438274 Page: 6 Date Filed: 11/12/2013
No. 13-40687
aware that he has suffered an injury or has sufficient information to know that
he has been injured.” Helton v. Clements, 832 F.2d 332, 334–35 (5th Cir. 1987).
Federal courts borrow the forum state’s equitable tolling principles. See
Rotella, 144 F.3d at 897.
Texas’s general personal injury limitations period is two years. Tex. Civ.
Prac. & Rem. Code Ann. § 16.003. As the magistrate judge correctly observed,
the factual basis for all of Bell’s claims arises from the state court custody and
conservatorship proceedings from 2001–03. Thus, the two-year statute of
limitations bars Bell’s claims unless any grounds for tolling exist.
Bell contends that this Court should toll the applicable statute of
limitations. She points out that Defendant–Appellee Suzanne Schwab-
Radcliffe, the judge who issued the custody order in Bell’s state court case, was
working part-time as a family court judge and part-time as a family law
attorney at the time Bell’s custody proceeding took place. Bell brings to this
Court’s attention a recent ethics opinion from the Texas Committee on Judicial
Ethics, which advises that it would be inconsistent with the Code of Judicial
Conduct for a part-time state family court judge to also practice family law part
time in that or surrounding counties. Bell claims that CPS and other
Defendants–Appellees fraudulently concealed the fact that Judge Schwab-
Radcliffe was working as a part-time family court judge and a part-time family
law attorney, and, therefore, this alleged fraudulent concealment should toll
the statute of limitations.
We find Bell’s arguments for tolling the two-year statute of limitations
unavailing. For fraudulent concealment to toll the statute of limitations, Bell
must prove the Defendant–Appellees: “(1) had actual knowledge of the wrong;
(2) had a fixed purpose to conceal the wrong; and (3) did conceal the wrong from
the plaintiff.” Doe v. St. Stephen’s Episcopal Sch., 382 F. App’x 386, 390 (5th
Cir. 2010) (quoting Quigley v. Bennett, 256 S.W.3d 356, 360–61 (Tex. App.—
6
Case: 13-40687 Document: 00512438274 Page: 7 Date Filed: 11/12/2013
No. 13-40687
San Antonio 2008, no pet.); see also Earle v. Ratcliff, 998 S.W.2d 882, 888 (Tex.
1999) (discussing fraudulent concealment under Texas law in the medical
malpractice context); BP Am. Prod. Co. v. Marshall,
342 S.W.3d 59, 67 (Tex.
2011) (discussing fraudulent concealment under Texas law in an oil and gas
case). Here, the wrongs Bell complains of all stem from the custody
proceedings in state court from 2001–03. Bell repeatedly argues that the fact
that Judge Schwab-Radcliffe was working as a part-time family law judge and
a part-time family law attorney means the judge “was not a legitimate judge”
and renders her decision in Bell’s case “invalid.” But Bell’s conclusory
allegations are not sufficient to toll the statute of limitations in this case.
Furthermore, although Bell did not learn of the judge’s dual roles until 2013,
Bell alleges no facts in her brief that any of the Defendants–Appellees
intentionally withheld that information from her.
Accordingly, the district court was correct that the two-year statute of
limitations bars Bell’s claims under § 1983 and that those claims should be
dismissed.
B. Bell’s Claims Under the International Child Abduction Remedies
Act, 42 U.S.C. §§ 11601–10
Bell also attempts to file a petition pursuant to the International Child
Abduction Remedies Act (“ICARA”), 42 U.S.C. §§ 11601–10. 6 Bell alleges that
CPS’s removal of her children from the family home was an abduction that
violated international law. She asks this Court to revoke all state court orders
regarding her family.
Bell’s claims, however, misunderstand the nature of a petition under
ICARA. First, ICARA is meant to address “international abduction or wrongful
Although Bell did not specifically raise ICARA in her complaint before the district
6
court, she made general allegations of violations of international law, and so we will address
the ICARA claim before this Court.
7
Case: 13-40687 Document: 00512438274 Page: 8 Date Filed: 11/12/2013
No. 13-40687
retention of children,” not individual disagreements over the merits of a state
court conservatorship ruling. See 42 U.S.C. § 11601 (emphasis added).
Moreover, this Court does not have the authority under ICARA to determine
the “merits of any underlying child custody claims.” Id. Texas courts made
the custodial decision in this case, and nothing in ICARA gives this Court
jurisdiction to alter the custodial determination of Texas state courts. Thus,
Bell’s claims under ICARA should be dismissed.
C. Remaining State Law Claims
Having affirmed the dismissal of all of Bell’s federal law claims, the only
claims remaining are based on Texas state law. The magistrate judge, in the
Report and Recommendation that the district court adopted, declined to
exercise supplemental jurisdiction under 28 U.S.C. § 1367(a) to review Bell’s
state law claims. The court reasoned that, because all of Bell’s federal claims
had been dismissed, her state law claims could be brought more appropriately
in state court. This Court has previously held that a district court has the
discretion to “remand supplemental state law claims when it has dismissed the
claims that provide the basis for original jurisdiction,” and that is exactly what
the district court did in this case. See Giles, 172 F.3d at 339 (citation omitted).
Bell has not argued, nor do we find, any abuse of discretion in the district
court’s decision not to exercise supplemental jurisdiction.
V. CONCLUSION
For the foregoing reasons, we AFFIRM the district court.
8
