Take the Fifth

Designated for publication

• Brown v. Tarrant County, Texas, 19-10594, appeal from N.D. Tex.
  • Duncan, J. (Clement, Ho, Duncan), § 1983, qualified immunity
  • Affirming dismissal of civilly committed violent sex offender’s § 1983 claims against county and sheriff for a 20-day confinement in the county jail during which he did not receive his sex-offender treatment.
  • The Court held that the defendant sheriff was entitled to qualified immunity because the right that the plaintiff asserted to have been violated was not “clearly established” at the time of the alleged violation. “Brown argues that when Anderson confined him in the Cold Springs Jail, it was clearly established that a person may be civilly confined only under conditions reasonably related to the purpose for which he was committed,” such that confinement in the jail without the sex-offender treatment violated his due process-based rights.
  • The Court disagreed, holding that the plaintiff failed to characterize the asserted right with sufficient specificity and granularity. The Court noted that the responsibility to ensure the administration of sex-offender treatment remained on the state agency charged with overseeing the civil-commitment program, not on the authorities–such as the sheriff–administering the confinement. Moreover, the Court observed that, at the time of the plaintiff’s confinement in Tarrant County, there was a circuit-split that was unaddressed in the Fifth Circuit as to whether sex offenders were even entitled to sex-offender treatment in the first place; accordingly, “we cannot say that Anderson’s failure to provide Brown with sex offender treatment—where, again, the obligation for doing so lay elsewhere—violated clearly established law.”
  • As to stating a claim for municipal liability against the county, “Brown had to sufficiently allege (1) that ‘an official policymaker with actual or constructive knowledge of the constitutional violation acted on behalf of the municipality’; (2) that the allegedly unconstitutional action constitutes a ‘custom or policy’; and (3) that there was ‘a violation of constitutional rights whose moving force is the policy or custom.'” The Court held that the plaintiff failed to sufficiently allege the second element, that the county had a policy of denying treatment to sex offenders. “Even if we charitably interpret Brown as arguing Tarrant County had a custom of denying sex offender treatment, he fails to plead sufficient facts to show that second basis for finding a ‘policy’ under Monell. Brown identified only one instance of the county’s confining a committee without treatment— his own—but ‘[i]solated violations are not the persistent, often repeated, constant violations, that constitute custom and policy as required for municipal section 1983 liability.'”

• Garcia v. United States, 19-40718, appeal from S.D. Tex.
  • Willett, J. (Jolly, Jones, Willett), admiralty law, product liability, negligence
  • Affirming dismissal of claims by surviving partner and child of a Mexican citizen who was struck and killed by a Coast Guard boat as she tried to swim across the Brownsville ship channel to enter the United States illegally, claims that included negligence claims against the United States and product liability claims against manufacturers of the vessel and its engines.
  • The Court first held that the federal courts had subject-matter jurisdiction over the claims against the United States pursuant to the sovereign immunity waiver under the Suits In Admiralty Act and the Public Vessels Act, as the claim was a claim in admiralty.
  • The Court then held that the plaintiff did not have standing to bring wrongful death and survival claims on hit own behalf because he could not satisfy the requirements as a common-law spouse under Texas law, since he and the decedent had not lived together in Texas or represented to people in Texas that they were married. However, the Court held that he did have standing to assert claims on behalf of his and the decedent’s minor child.
  • Regarding whether the plaintiff stated a claim for negligence, the Court held that the primary element was whether the plaintiff satisfactorily alleged that the United States owed a duty to the decedent. “While our determination is guided by many factors, an especially important factor is ‘the foreseeability of the harm suffered by the complaining party.'” Here, because of the nature of traffic in the shipping channel, the Court held that the collision was not foreseeable. “Here, the general sort of harm—a collision between a vessel and an individual swimming across the BSC—was not foreseeable. The BSC is ‘a high-traffic waterway, travelled day and night by various vessels from small fishing boats to large tankers.'” The Court held that this was especially true where the category of swimmers would specifically be swimmers intentionally trying to avoid detection. The Court rejected the plaintiff’s argument that the Coast Guard had particular knowledge that immigrants used the shipping channel as a point of entry, noting that the plaintiff’s allegations left open that the Coast Guard “did not know (1) the exact number of crossings, (2) the exact location of crossings, or (3) the exact timing of crossings, among other relevant details.”
  • As to plaintiff’s product liability claims, the Court held that, under maritime law, a bystander does not have standing to bring a product liability claim The Court held that broader standing under Texas product liability law would not be “gap-filling” for maritime law, and could not be applied.
  • The Court then noted that the dismissal of the product liability claim could be affirmed on the alternative ground of the lack of a genuine dispute of material fact regarding the proximate cause between the asserted product defects and the death of the swimmer.

• Stringer v. Town of Jonesboro, 20-30192, appeal from W.D. La.
  • Duncan, J. (Elrod, Duncan, Wilson), Clean Water Act, timeliness, § 1983
  • Affirming in part and reversing in part dismissal of property owner’s claims against municipality arising from the discharge of sewage onto her property for more than ten years, and remanding for further proceedings; affirming the dismissal of § 1983 takings claim as time-barred, and reversing the dismissal of Clean Water Act citizen-suit claims.
  • The Court held that the enforcement actions by the Louisiana Department of Health, to enforce the Sanitary Code, did not trigger the diligent prosecution bar of the Clean Water Act’s citizen suit provision. Section 1319 of the CWA provides that no violation may be the subject of a CWA citizen suit when “a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection.” 33 U.S.C. § 1319(g)(6)(A)(ii). The Court held that Louisiana’s Sanitary Code is not “comparable” to the CWA provisions. A “state statute is ‘comparable’ to the CWA under § 1319(g)(6)(A)(ii) so long as the state law contains comparable penalty provisions which the state is authorized to enforce, has the same overall enforcement goals as the federal CWA, provides interested citizens a meaningful opportunity to participate at significant stages of the decision-making process, and adequately safeguards their legitimate substantive interests.” (Internal quotation marks and citations omitted).
  • The Court held, “We begin (and end) with Lockett’s requirement that, to be comparable, a state law must ‘provide[] interested citizens a meaningful opportunity to participate at significant stages of the decision-making process.’ The Sanitary Code fails this requirement. It provides no formal or structured means for interested citizens to become aware of LDOH’s enforcement efforts, nor any mechanism by which they can call for further action, involve themselves in related or ongoing proceedings, or otherwise weigh in on those efforts.”
  • Where the question of whether LDEQ’s efforts triggered the bar, the Court observed, “not so fast,” because the defendants had failed to raise that argument until their opposition to plaintiff’s Rule 59(e) motion at the district court. The Court also noted the “scattershot” nature of the record on the issue, noting that the question of “diligent” prosecution is a fact-intensive one.
  • As to the timeliness of plaintiff’s § 1983 claim, the Court started from the premise that, for § 1983 claims, the limitations period is borrowed from relevant state law. Here, the Court held that Louisiana’s one-year period for personal injury actions was the applicable period. The Court rejected plaintiff’s argument that the period should have been tolled during the time period that the plaintiff claims she trusted in the town’s representations that they were working to fix the problem. “The Town’s promised fix does not change the fact that Stringer knew about the problem since November 2011, which started limitations ticking. Notably, Stringer does not claim the Town concealed the source of the backups from her, but only that it failed to follow through on fixing the problem.”

Unpublished

• U.S. v. Blanton, 18-40792, appeal from E.D. Tex.
  • per curiam (Davis, Stewart, Dennis), criminal, sentencing
  • Affirming 235-month prison sentence and 5-year term of supervised release for conspiracy to possess with the intent to distribute and distribution of marijuana and cocaine, remanding for the limited purpose of ensuring that Blanton’s condition of supervised release is consistent with the district court’s oral pronouncement at sentencing.

• Manzano-Murillo v. Rosen, 19-60706, petition for review of BIA order
  • per curiam (Davis, Stewart, Dennis), immigration
  • Denying petition by Honduran citizen for review of BIA order dismissing appeal from the IJ’s denial of applications for asylum, withholding of removal, and protection under the Convention Against Torture.

• U.S. v. Chica-Gutierrez, 20-10070, appeal from N.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), criminal, sentencing
  • Affirming 125-month sentence for illegal presence in the United States following removal.

• U.S. v. Vestal, 20-10325, appeal from N.D. Tex.
  • per curiam (Clement, Higginson, Engelhardt), criminal, sentencing
  • Affirming 48-month sentence following guilty plea conviction for distribution and possession with intent to distribute methamphetamine.

• U.S. v. Rodriguez-Calderon, 20-10813, appeal from N.D. Tex.
  • per curiam (Haynes, Willett, Ho), criminal, sentencing
  • Granting summary affirmance of 37-month, within-guideline sentence imposed following his guilty plea conviction for illegal reentry after removal from the United States.

• Kerek v. Crawford Electric Supply Co., 20-30555, appeal from M.D. La.
  • per curiam (Haynes, Willett, Ho), employment law
  • Affirming judgment after bench trial in favor of defendant on plaintiff employee’s claims under the Louisiana Wage Payment Act.

• U.S. v. Wooten, 20-50007, appeal from W.D. Tex.
  • per curiam (Haynes, Willett, Ho), criminal, sentencing
  • Affirming sentence within the advisory range to 12 months of imprisonment and two years of supervised release for violating conditions of supervised release.

• Juca-Juca v. Rosen, 20-60538, petition for review of BIA order
  • per curiam (Clement, Higginson, Engelhardt), immigration
  • Denying Ecuadoran citizen’s petition to review BIA order denying affirming IJ’s order denying motion to reopen removal proceedings.