Take the Fifth: March 26, 2021 opinions

Designated for publication

  • Douglas v. Wells Fargo Bank, N.A., 18-11567, appeal from N.D. Tex.
    • Owen, C.J. (Owen, Haynes, Costa), Haynes, J., dissenting in part; foreclosure, breach of contract
    • Affirming dismissal of borrowers’ claims arising from foreclosure on home by mortgagor.
    • The Court first held that the borrowers’ protestation that they never received the notice of the foreclosure sale was not enough by itself to create a genuine issue of fact to defeat summary judgment dismissal of their foreclosure-sale claim.
    • The Court then held that the district court properly dismissed the plaintiffs’ due process claim, which was raised for the first time in response to a motion for summary judgment, whether the basis for that dismissal was a denial of leave to amend the complaint or was on the merits, since the claim relied on the same basis as the foreclosure-sale claim.
    • The Court then held that the district court properly denied the plaintiffs’ Texas statutory claim, rejecting the argument that an alleged agreement by an unnamed Wells Fargo employee to accept $14,000 as payment on a payment plan toward the debt, which at that time the plaintiffs conceded was at least $15,272.55, constituted a modification of the loan. The Court held that, under Texas law, the modification would have had to have been in writing to be effective.
    • Judge Haynes dissented in part. She would have reversed the dismissal of the plaintiffs’ Texas statutory law claim, noting that the TDCA claim based on the phone call was about more than just a breach of oral contract, as analyzed by the majority. “The Douglases claim that Wells Fargo told them on the call that it would ‘automatically draft’ a required payment from their account. That representation, coupled with a subsequent letter from Wells Fargo indicating that ‘no action was required,’ led the Douglases to believe that their loan was current such that Wells Fargo would not be foreclosing on their house. … The upshot: the phone call plausibly muddled the Douglases’ understanding of whether they had a past-due mortgage debt, how much they owed, and whether they were in default. These are paradigmatic indicia of a misrepresentative statement.”
  • U.S. v. Reyna-Aragon, 20-10071, appeal from N.D. Tex.
    • Engelhardt, J. (Elrod, Willett, Engelhardt), criminal, sentencing
    • Affirming within-guidelines 60-month sentence on guilty plea to illegal reentry after removal.
    • The Court held that the district court should have applied the version of the guidelines in effect at the time of the offense rather than the version in effect at the time of sentencing, where the earlier version was more lenient, under the Ex Post Facto Clause. However, the Court held that the error was harmless because the district court expressed that it would have applied the same sentence regardless of the Ex Post Facto issue, due to the defendant’s criminal history and the consideration of protection of the public, showing that “the record reflects that the district court justified ReynaAragon’s 60-month sentence on factors independent from the erroneous Guidelines range.”
    • The Court also held that there was no plain error in the district court’s reliance in part on the recitation of facts behind a “no bill” sexual assault arrest in the defendant’s criminal history.
  • Valentine v. Collier, 20-20525, appeal from S.D. Tex.
    • Davis, J. (Davis, Stewart, Oldham), Oldham, J., concurring in judgment; injunctive relief, COVID-19, prisoner suit
    • Reversing permanent injunction mandating certain measures be taken for plaintiff inmates in geriatric prison unit with regard to protection from COVID-19.
    • The Court held that the plaintiffs had failed to show a probability of success on the merits of their Eighth Amendment claim because they could not show that prison officials “recklessly responded to the risk of COVID-19.” The Court held, “the record does not support a finding that the lack of a compliance regime to oversee the prison’s response to the virus constituted deliberate indifference. We do not fault prison officials for failing to add another layer of administration. Prison personnel have a military style chain of command and are expected to follow prison policies. Adding another layer to this scheme amounts to impermissible micromanagement of state prisons. Defendants responded to the virus with a prison-wide policy and relied on their staff to follow the policy. This was not unreasonable.”
    • The Court also held that post-trial showings that the prison was conducting weekly mass testing, and prior to that had increased its use of “strike team” testing on the unit, showed that the testing practice did not constitute deliberate indifference.
    • As to social distancing, the Court held it was not deliberate indifference for the prison to not adopt head-to-foot sleeping arrangements in its dormitory accommodations, because the waist-high cubicle walls between each inmate’s sleeping areas made it so the inmates were breathing into a wall and not into each other’s space. The Court also held it was not deliberate indifference for the prison to not move inmates into two newly constructed dormitories to facilitate social distancing for a month after construction was completed because, “[n]otwithstanding the valid pandemic-related reason to save the dorms for emergency movement of non-Pack Unit inmates, prison officials ultimately used the extra dorms to facilitate social distancing approximately one month after construction was complete, and they continue to be used for that purpose.”
    • The Court also held that there was not deliberate indifference by the prison official defendants with regard to officer mask use because of the sparse documentation of improper mask use by officers within six feet of inmates. “Although mask use is important, without more details, we cannot say that Herrera or Collier recklessly ignored a substantial risk of harm from non-mask use without concrete evidence of infractions that placed inmates in harm’s way and of which the two defendants were aware.”
    • The Court held that the installation of handwashing stations, which occurred during the trial, obviated any finding of deliberate indifference with regard to the lack of working sinks for handwashing.
    • The Court likewise held that the installation of a whole-unit electrostatic sprayer for disinfection of the unit obviated the deliberate indifference claim with regard to lack of sufficient cleaning supplies. “[L]ike the handwashing stations, the electrostatic sprayer was a reasonable response to the need to disinfect the Pack Unit even though it came late. Given that these responsive measures have been implemented, injunctive relief is inappropriate.”
    • As to injunctive relief generally, the Court observed, “Collier and Herrera’s response to COVID-19 in the crowded dormitories of the Pack Unit was far from perfect. The same can be said for the response in most communities in the free world. Knowledge about the disease and how to combat it evolved over the nine months of this litigation. … We are firmly convinced that this litigation generally and the district court’s careful management and expedited handling of the case played a role in motivating the prison officials into action and saved countless lives. Injunctive relief is forward looking, and given the Defendants’ response, including actions taken on the eve of and during trial, the permanent injunction is not warranted.”
    • The Court then held that the mobility-impaired sub-class failed to make a prima facie case under the ADA and the Rehabilitation Act because they failed to show that the prison officials were aware of their unique conditions that made it impossible for them to effectively use the sinks and handwashing stations (i.e., that immediately after using those facilities they had to touch the dirty rims of their wheelchairs or their canes or walkers).
    • Judge Oldham concurred in the judgment. He took issue with the majority’s opining that the district court’s management of the litigation led to motivating the prison officials to take actions to save lives. “‘The Constitution charges federal judges with deciding cases and controversies, not with running state prisons.’ Lewis v. Casey, 518 U.S. 353, 364 (1996) (Thomas, J., concurring). … I would have preferred to say nothing about the district court’s management of the litigation. We have identified at least some of the district court’s legal errors, and we’ve ended the case. That should be that.” Although the majority had noted that, “[b]y the time of trial, over 497 Pack Unit inmates had tested positive for COVID-19, 74 inmates had been hospitalized, and 19 inmates had died,” Judge Oldham took issue with the majority’s characterization of the district court’s management of the litigation as having compelled the prison officials to take actions to save lives because, “currently,” there are only four positive cases of COVID at the prison. Judge Oldham then took the majority’s dicta as an invitation to wax at length about the federalism costs of the pre-PLRA regime of prisoner litigation and federal court structural injunctions governing conditions in state prisons.
  • Frew v. Young, 20-40541, appeal from E.D. Tex.
    • Smith, J. (King, Smith, Haynes), attorneys’ fees
    • Affirming district court’s denial of motion to reconsider judgment denying attorneys’ fees to prevailing party on § 1988 claim. The Court held that the motion to reconsider was filed 30 days after the judgment denying the attorneys’ fee motion, so did not toll the time to appeal the underlying judgment. Reviewing the judgment denying reconsideration as a judgment denying a Rule 60(b) motion, the Court held that the district court did not abuse its discretion in denying fees on a motion that the plaintiffs lost, even though they had been the prevailing party on the overarching injunctive action.

Unpublished

  • McCollum v. Lewis, 18-11480, appeal from N.D. Tex.
    • per curiam (Owen, Davis, Dennis), prisoner suit
    • Affirming in part and vacating in part dismissal of prisoner’s suit regarding the invalidity of the revocation of his community supervision and attendant imposition of a term of imprisonment such that he is estopped from bringing those claims.
  • U.S. v. Glover, 20-10228, appeal from N.D. Tex.
    • per curiam (King, Smith, Haynes), criminal, sentencing
    • Affirming sentences of 271 months and 300 months for two co-defendants resentenced on remand from original appeal of conviction on multiple offenses for a series of robberies.
  • U.S. v. Varela, 20-10680, appeal from N.D. Tex.
    • per curiam (Jones, Clement, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Morgan v. Regions Bank, 20-20358, appeal from S.D. Tex.
    • per curiam (King, Smith, Haynes), bankruptcy
    • Affirming sustaining of objection to homestead exemption.
  • Hines v. Wisser, 20-50234, appeal from W.D. Tex.
    • per curiam (Stewart, Graves, Higginson), prisoner suit
    • Dismissing appeal of prisoner suit as frivolous.
  • U.S. v. Ponce, 20-50845, appeal from W.D. Tex.
    • per curiam (Davis, Stewart, Ho), criminal, sentencing
    • Dismissing pursuant to appeal waiver the appeal of an 87-month sentence imposed following defendant’s guilty plea for conspiring to import five kilograms or more of cocaine.
  • Falcon v. Garland, 20-60206, petition for review of BIA order
    • per curiam (Davis, Stewart, Ho), immigration
    • Denying in part and dismissing in part petition for review of BIA order dismissing appeal of IJ’s denial of motion to reopen.