981 F.2d 237 (5th Cir. 1993), 90-2476, Colle v. Brazos County, Tex.

Docket Nº90-2476.
Citation981 F.2d 237
Party NameRuby COLLE, Individually etc., et al., Plaintiffs-Appellants, v. BRAZOS COUNTY, TEXAS, Ronnie Miller, Individually and in his Official Capacity as Sheriff of Brazos County, Texas, and Unnamed Employees of the Brazos County Sheriff's Department, Defendants-Appellees.
Case DateJanuary 20, 1993
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 237

981 F.2d 237 (5th Cir. 1993)

Ruby COLLE, Individually etc., et al., Plaintiffs-Appellants,

v.

BRAZOS COUNTY, TEXAS, Ronnie Miller, Individually and in his

Official Capacity as Sheriff of Brazos County, Texas, and

Unnamed Employees of the Brazos County Sheriff's Department,

Defendants-Appellees.

No. 90-2476.

United States Court of Appeals, Fifth Circuit

January 20, 1993

Page 238

[Copyrighted Material Omitted]

Page 239

Michael A. Maness and Albert S. Low, Jr., Houston, TX, for plaintiffs-appellants.

Thomas Ewing and Sharon Stagg, Hays, McConn, Price & Pickering, Houston, TX, for defendants-appellees.

William S. Helfand, Hirsch, Glover, Robinson & Sheiness, Houston, TX, for Miller.

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

Before POLITZ, Chief Judge, BROWN and JONES, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

Alleging violations of 42 U.S.C. § 1983, pretrial detainee's survivors appeal the 12(b)(6) dismissal of their claims against Brazos County, its Sheriff and "unnamed employees." For the following reasons, we (1) hold that we do not have jurisdiction over all Plaintiffs on appeal, (2) affirm the dismissal of the unnamed defendants, (3) reverse the dismissal of Brazos County and Sheriff Ronnie Miller in his capacity as Sheriff, and (4) reverse the dismissal of Sheriff Ronnie Miller, individually.

How It All Began

The complaint filed by Richard Lee Colle's survivors alleges the following facts. On February 20, 1985, Colle was arrested pursuant to a felony warrant and confined as a pretrial detainee in the Brazos County Jail in Bryan, Texas. Colle was visibly intoxicated. Two days later, Colle slipped and fell in the jail. A physician examined him at St. Joseph's Hospital in Bryan and determined that the injuries were minor. The doctor advised the jail personnel to monitor Colle's condition because of his alcoholism, cirrhosis of the liver and possible onset of delirium tremens.

Page 240

During the evening of February 23 and the early morning of February 24, the jailers observed that Colle was unable to take his prescribed medication and communicate coherently. The midnight-shift supervisor contacted his superior regarding Colle's condition, and was told to contact the day-shift supervisor. The day-shift supervisor advised that when he came on duty later that day he would attempt to have Colle moved from the jail. Between 7:45 a.m. and 8:50 a.m. on the 24th, jailers observed Colle hitting his fist and face on the concrete floor of the cell while his whole body was shaking. They noticed blood on his hand. His breathing was forced and eventually stopped. At approximately 9:00 a.m., a jail officer began administering CPR, but became ill and turned over the resuscitation to a jail trustee. Emergency medical service personnel arrived and transported Colle to the hospital where he was pronounced dead on arrival.

Colle's survivors 1 filed suit against Brazos County; Ronnie Miller, individually and in his official capacity as Sheriff; and "unnamed employees of the Brazos County Sheriff's Department." The survivors alleged violations of 42 U.S.C. § 1983 and state law claims for negligence and gross negligence.

The Second Original Amended Complaint asserted in part that policies of Sheriff Miller caused a deprivation of Colle's Fourteenth Amendment right, which included the right to adequate medical treatment.

On February 7, 1990, the trial judge by order dismissed Plaintiffs' claims against Brazos County for failure to state a federal claim upon which relief can be granted and against Sheriff Miller for failure to allege facts that would deny Miller qualified immunity. 2 The court further directed that a Joint Pretrial Order with all required attachments be filed by April 6, 1990.

On April 7, 1990, Plaintiffs filed a motion for continuance and to extend the time for filing the joint pretrial order. At an April 16 hearing, Plaintiffs moved for a continuance. The trial judge stated that the case had been on file for three years and that the "unnamed employees" had not yet been identified or served. To this Plaintiffs' counsel suggested, "the Court might want to consider dismissing as to those two remaining Defendants. I, quite honestly, don't see any problems with doing that." The court responded:

That's what I'm going to do. I'm going to dismiss the case for want of prosecution. I've bent over backwards to indulge the Plaintiff in this case.

Even though the original two complaints, as I recall, were inadequate, I allowed you to assist in filing a further amended complaint; and the failure to do anything in the case over the last two months, including filing a joint pretrial order, the failure to take any action to identify or to seek service of the two unnamed Defendants, shows a lack of interest in the case; and I'm going to dismiss the case for want of prosecution.

Plaintiffs' counsel failed to object, and the dismissal order was filed on April 18, 1990.

A Stumbling Block of Jurisdictional Proportion

The initial issue before this court is jurisdictional. We raise the question sua sponte because we have an independent duty to determine our jurisdiction over any case presented to us for decision. 3 The Notice of Appeal (NA) caption designates the prospective appellants only as "Ruby Colle, et al." Moreover, the body of the NA never refers to Colle's survivors by

Page 241

name, but only by the term "Plaintiffs." 4 We must determine whether we have jurisdiction over all plaintiffs including those designated by "et al." or whether our jurisdiction is limited to the party specifically named in the NA. We hold that our jurisdiction is limited to Ruby Colle, who sued individually and on behalf of Ricky Samuel Colle, a minor. 5

Fed.R.App.P. 3(c) provides in pertinent part that a notice of appeal "shall specify the party or parties taking the appeal." The Supreme Court has made clear that the language "et al." in a notice of appeal fails to provide the required notice under Rule 3(c). 6 In Torres, the Court reasoned that:

The purpose of the specificity requirement of Rule 3(c) is to provide notice both to the opposition and to the court of the identity of the appellant or appellants. The use of the phrase "et al.," which literally means "and others," utterly fails to provide such notice to either intended recipient. 7

The Court concluded that the failure to include the name of a petitioner in the notice constituted a jurisdictional bar to the appeal on behalf of the unidentified party. 8 Following the same rationale, we hold that we have no jurisdiction over the following undesignated parties: Edna Colle, individually and on behalf of the Estate of Richard Lee Colle, deceased; and Judy Davidson, on behalf of Tara Rose Colle, a minor.

The NA, however, was adequate with respect to Ruby Colle and Ricky Samuel Colle, a minor, on whose behalf Ruby Colle jointly sued. After Torres, the Fifth Circuit has recognized four situations in which failure to name a party in a notice of appeal is not fatal to gaining jurisdiction. 9 The last exception applies in this case. When parents sue on their own behalf and on behalf of their children, the children's appeal is preserved despite the parents' failure to name the children in the notice. In King v. Otasco, Inc., a father failed to specify in a notice of appeal that he appealed both individually and on behalf of his children as their next friend. 10 There we held that the deletion did not deprive the court of jurisdiction over the children's appeal. 11 Likewise, in this case we have jurisdiction

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to review the appeal of Ruby Colle, individually and on behalf of Ricky Samuel Colle, a minor.

Other Circuits recognize additional exceptions to Torres. 12 For example, the Ninth Circuit in several decisions held that a notice of appeal need not list the names of all appealing parties if a generic term, such as "plaintiffs" or "defendants," adequately identifies them. 13 The Ninth Circuit reasoned that these terms normally mean all plaintiffs or defendants and that if only some of the parties intended to appeal, the body of the notice should have stated that certain plaintiffs or defendants appeal. 14 The body of the Notice in this case contains the term "Plaintiffs."

The Fifth Circuit, however, has not reached the same conclusion as the Ninth Circuit on the use of generic terms. In Resolution Trust v. Sonny's Old Land Corp., we held that our jurisdiction was limited to the only named defendant since "defendants" did not indicate with any degree of certainty which of the other defendants below joined in the appeal. 15 Because the NA resembles that in Sonny's Old Land, we hold that use of the term "Plaintiffs" in the body does not provide notice for plaintiffs other than Ruby Colle, in her several capacities.

The Unnamed Defendants

In addition to the other defendants, Plaintiffs brought suit against "unnamed employees of the Brazos County Sheriff's Department." Because Plaintiffs failed to further identify who these employees were, the district court's dismissed the "unnamed employees" for want of prosecution. We conclude that the dismissal was proper.

A dismissal with prejudice for failure to prosecute operates as an adjudication on the merits 16 and is reversible only when the court has abused its discretion. 17 Fed.R.Civ.P. 41(b) provides that a defendant may move to dismiss a claim for plaintiff's failure to prosecute. The court may also

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dismiss a case on its own motion. 18 Although dismissal with prejudice is a discretionary matter, this Circuit has "generally permitted it only in the face of a clear record of delay or contumacious conduct by the plaintiff." 19

Plaintiffs' failure to further identify or serve the "unnamed employees" after three years, 20 along with their failure to file the joint pretrial order, is sufficient to...

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308 practice notes
  • 62 F.3d 767 (5th Cir. 1995), 94-30297, Government Financial Services One Ltd. Partnership v. Peyton Place, Inc.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 7 de Setembro de 1995
    ...(1964)). The district court's decision to grant or deny a Rule 59(a) motion will be reversed only for an abuse of discretion. Flores, 981 F.2d at 237; Treadaway v. Societe Anonyme Louis-Dreyfus, 894 F.2d 161, 164 (5th "Ordinarily, a district court's decision not to grant a new trial un......
  • 607 S.W.3d 359 (Tex.App.—Houston [14th Dist.] 2020), 14-17-00732-CV, Harris County v. Coats
    • United States
    • Texas Court of Appeals of Texas
    • 6 de Fevereiro de 2020
    ...is without question the county's final policymaker in the area of law enforcement.'" (quoting Colle v. Brazos County, 981 F.2d 237, 244 (5th Cir. 1993))); James v. Harris County, 577 F.3d 612, 617 (5th Cir. 2009); Turner v. Upton County, 915 F.2d 133, 136-37 (5......
  • 27 F.3d 1112 (5th Cir. 1994), 93-2186, Schultea v. Wood
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 9 de Agosto de 1994
    ...factual detail and particularity including why the defendant-official cannot maintain the immunity defense." Colle v. Brazos County, 981 F.2d 237, 246 (5th Cir.1993). Citing the Supreme Court's recent decision in Leatherman v. Tarrant County Narcotics Unit, --- U.S. ----, 113 S.Ct. 116......
  • 866 F.Supp. 325 (S.D.Tex. 1994), Civ. A. H-92-1892, Gartrell v. Gaylor
    • United States
    • Federal Cases United States District Courts 5th Circuit Southern District of Texas
    • 26 de Setembro de 1994
    ...all claims against "John Doe" are DISMISSED without prejudice for want of prosecution. See Colle v. Brazos County, Texas, 981 F.2d 237, 242-243 (5th Cir. [3] The court need not consider whether plaintiff's claims are cognizable in habeas corpus because plaintiff is not in custody ......
  • Free signup to view additional results
308 cases
  • 62 F.3d 767 (5th Cir. 1995), 94-30297, Government Financial Services One Ltd. Partnership v. Peyton Place, Inc.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 7 de Setembro de 1995
    ...(1964)). The district court's decision to grant or deny a Rule 59(a) motion will be reversed only for an abuse of discretion. Flores, 981 F.2d at 237; Treadaway v. Societe Anonyme Louis-Dreyfus, 894 F.2d 161, 164 (5th "Ordinarily, a district court's decision not to grant a new trial un......
  • 607 S.W.3d 359 (Tex.App.—Houston [14th Dist.] 2020), 14-17-00732-CV, Harris County v. Coats
    • United States
    • Texas Court of Appeals of Texas
    • 6 de Fevereiro de 2020
    ...is without question the county's final policymaker in the area of law enforcement.'" (quoting Colle v. Brazos County, 981 F.2d 237, 244 (5th Cir. 1993))); James v. Harris County, 577 F.3d 612, 617 (5th Cir. 2009); Turner v. Upton County, 915 F.2d 133, 136-37 (5......
  • 27 F.3d 1112 (5th Cir. 1994), 93-2186, Schultea v. Wood
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 9 de Agosto de 1994
    ...factual detail and particularity including why the defendant-official cannot maintain the immunity defense." Colle v. Brazos County, 981 F.2d 237, 246 (5th Cir.1993). Citing the Supreme Court's recent decision in Leatherman v. Tarrant County Narcotics Unit, --- U.S. ----, 113 S.Ct. 116......
  • 866 F.Supp. 325 (S.D.Tex. 1994), Civ. A. H-92-1892, Gartrell v. Gaylor
    • United States
    • Federal Cases United States District Courts 5th Circuit Southern District of Texas
    • 26 de Setembro de 1994
    ...all claims against "John Doe" are DISMISSED without prejudice for want of prosecution. See Colle v. Brazos County, Texas, 981 F.2d 237, 242-243 (5th Cir. [3] The court need not consider whether plaintiff's claims are cognizable in habeas corpus because plaintiff is not in custody ......
  • Free signup to view additional results