Francisco Pena v. Texas Medical Board , 675 F. App'x 465 ( 2017 )

Case: 16-40451 Document: 00513838352 Page: 1 Date Filed: 01/17/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-40451
Fifth Circuit
FILED
Summary Calendar January 17, 2017
Lyle W. Cayce
FRANCISCO I. PENA, M.A. M.D., Clerk
Plaintiff - Appellant
v.
TEXAS MEDICAL BOARD; ROBERTA M. KALAFUT, D.O., Former
President, Texas Medical Board; KEITH MILLER, Former Member, Texas
Medical Board; IRVIN E. ZEITLER, JR., D.O., President, Texas Medical
Board; MARGARET C. MCNEESE, M.D., Member, Texas Medical Board;
MARI ROBINSON, J.D., Executive Director, Texas Medical Board; MARK
MARTYN, Former Staff Attorney, Texas Medical Board; STEPHEN B.
WHITE, Former Staff Attorney, Texas Medical Board; WALTER B.
MOSHER, Former Staff Attorney, Texas Medical Board; ELVIRA G.
PASCUA-LIM, M.D., Board Member, Texas Medical Board; H. JANE
CHIHAL, Board Member, Texas Medical Board; LEE S. ANDERSON,
Former President, Texas Medical Board; ROBERT D. SIMPSON, Former
General Counsel, Texas Medical Board,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:14-CV-196
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
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No. 16-40451
PER CURIAM:*
Francisco Pena, M.A., M.D., brought this action against the Texas
Medical Board and several current and former members and employees of the
Board. The district court dismissed Dr. Pena’s claims. We AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
Dr. Francisco Pena resides and practices medicine in Webb County,
Texas. In response to what Dr. Pena alleges was an anonymous complaint, the
Texas Medical Board initiated investigations to determine whether Dr. Pena
had breached the professional standard of care in the course of his practice.
Eventually, Dr. Pena was represented by counsel in a series of sanctions-
related proceedings with the Board pursuant to Chapter 164 of the Texas
Occupations Code. On December 10, 2004, the proceedings culminated in Dr.
Pena’s acceptance of a ten-year probationary sanction consisting of a public
reprimand, a prohibition from engaging in the practice of obstetrics, and a
prohibition from advertising as board certified in family and addiction
medicine. Dr. Pena sought relief from his sanction order from the Board, but
to no avail.
In December 2014, while still subject to the sanction order, Dr. Pena
brought this action for declaratory and injunctive relief. He argued that
various provisions of the Texas Occupations Code and associated regulations
were unconstitutional, both facially and as applied. He claimed that the
defendants’ application of the Texas Occupations Code violated his right to due
process and equal protection under the Fourteenth Amendment, his right to
* 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.
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make and enforce contracts under 42 U.S.C. § 1981, and his right to freedom
of speech and association under the First and Fourteenth Amendments. He
sought to have certain provisions of the Texas Occupations Code and his 2004
sanction order declared invalid, and to enjoin the sanction order’s continued
implementation and dissemination to a national data bank responsible for
registering sanctions against licensed physicians. Dr. Pena asserted his causes
of action pursuant to 42 U.S.C. § 1983 and directly under the Texas
constitution.
The district court dismissed all of Dr. Pena’s federal law claims and
declined to reach his state law claims. It dismissed his Section 1983 claims
against the Board on sovereign immunity grounds and his Section 1983 claims
against the Board’s former members for lack of standing. The district court
also dismissed Dr. Pena’s as-applied challenges under Section 1983 as to all
the defendants as barred by the Texas two-year statute of limitations for
personal injuries. In a separate order, and after requiring Dr. Pena to show
good cause as to why his facial challenge should not be dismissed, the court
dismissed all of Dr. Pena’s remaining claims. The defendants argued all of Dr.
Pena’s claims were barred by a contractual waiver in the sanction order, but
the district court declined to reach that issue because it was “inadequately
briefed.”
DISCUSSION
We review de novo the district court’s dismissal pursuant to Federal Rule
of Civil Procedure 12(b)(6), “accepting all well-pleaded facts as true and
viewing those facts in the light most favorable to the plaintiff.” Montoya v.
FedEx Ground Package Sys., Inc., 614 F.3d 145, 148 (5th Cir. 2010) (quotation
marks omitted). Dismissal “is appropriate where the plaintiff fails to allege
‘enough facts to state a claim to relief that is plausible on its face’ and thus
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does not ‘raise a right to relief above the speculative level.’” Id. (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). “A statute of limitations
may support dismissal under Rule 12(b)(6) where it is evident from the
plaintiff’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).
On appeal, Dr. Pena focuses his argument on the district court’s
dismissal of his Section 1983 claims as barred by the applicable statute of
limitations. The statute of limitations for suits brought under Section 1983 “is
determined by the general statute of limitations governing personal injuries in
the forum state.” Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir.
2001). In this case, the Texas two-year statute of limitations for personal
injuries applies to Dr. Pena’s Section 1983 claims. See id.; see also TEX. CIV.
PRAC. & REM. CODE § 16.003. Although Texas law provides the applicable
statute of limitations, “the standard governing the accrual of a cause of action
under section 1983 is determined by federal law.” Burrell v. Newsome, 883
F.2d 416, 418 (5th Cir. 1989). Generally, the statute of limitations “begins to
run the moment the plaintiff becomes aware that he has suffered an injury or
has sufficient information to know that he has been injured.” Piotrowski, 237
F.3d at 576 (quotation marks omitted).
Dr. Pena argues the district court “misunderstood” or “mischaracterized”
his claims and, as a result, erred in determining when his claims accrued for
purposes of the statute of limitations. He contends the sanction’s “restraint”
on his medical license and medical practice is analogous to false imprisonment,
which he submits is a continuing tort under Texas law that accrues on the date
the detention ends. Accordingly, Dr. Pena argues his claim accrued on the date
his sanction was lifted. That is not so, as accrual of a Section 1983 cause of
action is determined by federal law, not state law. Burrell, 883 F.2d at 418.
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For the same reason, we agree with another panel of this court that rejected
an attempt to use the Texas tort of false imprisonment to determine accrual
date. Villegas v. Galloway, 458 F. App’x 334, 338 (5th Cir. 2012). Moreover,
although Dr. Pena argues the sanction resulted in injury throughout the ten-
year period, his argument at best alleges a “single violation followed by
continuing consequences.” McGregor v. Louisiana State Univ. Bd. of
Supervisors, 3 F.3d 850, 867 (5th Cir. 1993). The district court correctly
determined that the two-year limitations period began to run when the
sanction issued in 2004.
Dr. Pena also references an argument he made in the district court
concerning the Board members’ alleged violation of his federal rights on
multiple occasions. He urged the district court to look to the “continuing
violations” doctrine from Title VII employment law, which “relieves a plaintiff
of establishing that all of the complained-of conduct occurred within the
actionable period if the plaintiff can show a series of related acts, one or more
of which falls within the limitations period.” Huckabay v. Moore, 142 F.3d 233,
238 (5th Cir. 1998) (quotation marks omitted). Again, we agree with the
district court that even if we were to assume the continuing violations theory
applies, the outcome would be the same. See McGregor, 3 F.3d at 866–67. The
last claimed unlawful act — and the only one possibly maintained on appeal
— was the rejection of Dr. Pena’s appeal before the Board as late as November
2010. Dr. Pena filed his complaint in this case in December 2014, well outside
the applicable two-year limitations period.
Finally, Dr. Pena makes a general reference to the doctrine of qualified
immunity in his brief. On appeal, “[i]t is not enough to merely mention or
allude to a legal theory.” United States v. Scroggins, 599 F.3d 433, 446 (5th
Cir. 2010). As Dr. Pena has failed to provide adequate briefing of any
remaining legal issues, he “is deemed to have waived [them].” Id.
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We AFFIRM.
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