70 F.3d 21 (5th Cir. 1995), 94-41229, Robertson v. Plano City of Texas

Docket Nº:94-41229.
Citation:70 F.3d 21
Party Name:Glen ROBERTSON and Cheryl Robertson, Individually and as Heirs at Law of Jonathan P. Robertson, Plaintiffs-Appellants, v. PLANO CITY OF TEXAS, et al., Defendants-Appellees.
Case Date:November 15, 1995
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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70 F.3d 21 (5th Cir. 1995)

Glen ROBERTSON and Cheryl Robertson, Individually and as

Heirs at Law of Jonathan P. Robertson, Plaintiffs-Appellants,


PLANO CITY OF TEXAS, et al., Defendants-Appellees.

No. 94-41229.

United States Court of Appeals, Fifth Circuit

November 15, 1995

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James Russell Tucker, Dallas, TX, for appellants.

Ernest E. Figari, Jr., Stephen D. Howen, Figari & Davenport, Dallas, TX, for appellees.

Appeal from the United States District Court for the Eastern District of Texas.



For this challenge to a Rule 12(b)(6) dismissal, primarily at issue is whether police officers violated a juvenile's rights under the Fourth and Fourteenth Amendments when, while investigating a burglary, they admonished him regarding potential imprisonment, even though they knew that the described punishment was applicable only to adults. We AFFIRM.


Pursuant to 42 U.S.C. Sec. 1983, the Robertsons sued the City (Plano, Texas), its police chief, and several police officers, asserting, in addition to claims under state law, claims under the Fourth, Ninth, and Fourteenth Amendments to the United States Constitution. They alleged that, one late evening in August 1993, two officers came to the Robertsons' home to talk with their 16-year-old son, Jonathan, about a burglarized car; that the officers suspected Jonathan and another juvenile had committed the burglary; that they notified Jonathan that he was a suspect and took his driver's license; that, without first giving Miranda warnings, they obtained his confession and admonished him that the offense was a third degree felony that carried the possibility of a $10,000 fine and imprisonment in a state penitentiary; that, although the officers knew that Jonathan was a minor, they quoted the law as it applied to adults; that the officers realized that the admonition was not accurate, but did not so inform Jonathan; and that Jonathan committed suicide at the Robertsons' home the next morning.

Contending, inter alia, that the Robertsons failed to state a claim upon which relief could be granted, the defendants moved to dismiss pursuant to FED.R.CIV.PROC. 12(b)(6). The district court granted the motion in part; all federal claims were dismissed with prejudice, and the state law claims were dismissed with and without prejudice. 1


In addition to asserting constitutional claims, the Robertsons contend that they should have been allowed to amend their complaint. Because so much of their brief is devoted to presenting their claims based on allegations they contend they will make if allowed to replead, we address the procedural issue first.


Although leave to amend should be granted liberally, we review its denial only for abuse of discretion. E.g., Cinel v. Connick, 15 F.3d 1338, 1346 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 189, 130 L.Ed.2d 122 (1994). But, as an added wrinkle, this issue is premised on a factual dispute, which is raised for the first time on appeal, thus, bringing plain error review into play.

In their response to the motion to dismiss, the Robertsons stated that, "should the court find that Plaintiffs' pleadings are unclear or deficient ... then Plaintiffs request that they be allowed to replead to correct any deficiencies". Notwithstanding this request, the district court stated, in its dismissal order, that the Robertsons did not wish to replead:

Although plaintiffs requested the opportunity to replead if the complaint was defective,

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at the management conference counsel for plaintiffs represented to the Court that plaintiffs were willing to stand on their response and the live pleadings in the determination of the motion to dismiss and did not want to replead.

The Robertsons insist that they did not drop their request to replead; in support, they offer an affidavit, which is not part of the record, from one of their attorneys present at the management conference. But, obviously, if the district court characterized incorrectly, or misunderstood, the Robertsons' position on amending the complaint, they should have requested reconsideration, pursuant to FED.R.CIV.P. 59(e) or 60(b). This allows the district court to correct any error that it may have committed. E.g., Edwards v. Sears...

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