Designated for publication
- Hutcheson v. Dallas County, Texas, 20-10383, appeal from N.D. Tex.
- Smith, J. (Higginbotham, Smith, Dennis), excessive force, qualified immunity
- Affirming summary judgment dismissal of plaintiffs’ excessive force and failure to train claims on qualified immunity grounds, in claims arising from officers’ restraint of victim at county jail as victim was actively resisting restraint.
- The Court held that there was no clearly established Constitutional right presented where (1) the victim had been actively resisting restraint, and (2) the officers never struck him, but engaged in actions to try to restrain the victim and put him in handcuffs.
- The Court also held that the district court did not err in denying limited discovery because the plaintiffs had not alleged facts that, if true, would have overcome the qualified immunity defense.
- The Court then held that the district court did not err in dismissing the failure to train claim, as (1) the allegation about a failure to train was merely speculative, and (2) the single-incident exception to the requirement to show a pattern of violations was not triggered because the plaintiffs did not allege that there had been a failure to provide any training whatsoever.
- Perry v. H.J. Heinz Company Brands, LLC, 20-30418, appeal from E.D. La.
- Graves, J. (Owen, Graves, Ho), trademark infringement
- Affirming dismissal of plaintiff’s claim against Heinz for use of a mock-up of a bottle of mayonnaise-ketchup blend with a “metchup” label in an online “battle” of proposed names for the product, where plaintiff had blended and sold on a very small scale ($170 in sales over ten years from the lobby of a motel) a product he called and had trademarked as “Metchup”; but vacating the district court’s cancelation of the plaintiff’s trademark on the basis that he had only engaged in de minimis use of the trademark in commerce. The Court’s background section is a joy to read, a tale of modern-day commercial aspirations on both the grand and small scale.
- The Court held that the district court did not err in finding that there was no danger of confusion between the mocked-up “metchup” bottle on the Heinz website and the actual product bottled and sold by the plaintiff. The Court also noted that the two were not marketing their products in the same space. Foremost, the Court held there was no record of actual confusion in the marketplace. “[N]othing in the record shows that any consumer actually got confused by Heinz’s use of Metchup on a mock-up bottle or confused Heinz’s Mayochup with Mr. Perry’s Metchup. After all, Heinz never sold a product named Metchup and there is no evidence that Heinz’s Mayochup and Mr. Perry’s Metchup have ever competed for sales.” The Court also held that the “incontestable” status of plaintiff’s trademark did not make his weak mark strong.
- However, as to the cancelation of the plaintiff’s mark, the Court held that the district court erroneously put the burden on plaintiff, rather than on Heinz, to show an abandonment of the mark. The Court also rejected the district court’s reliance on an “unlawful use” argument that the plaintiff’s labeling did not comply with state and federal food labeling regulations, because “this court has not adopted the unlawful use doctrine—the doctrine that failing to abide by all laws and regulations can turn what would otherwise constitute ‘use’ into ‘non-use.'” The Court also noted that “de minimis sales and sporadic use alone are not enough to warrant a conclusion that Mr. Perry has not made ‘use’ of the mark in a way that qualifies as ‘use’ under the Lanham Act.”
- Yowell v. Administrative Review Board, U.S. Department of Labor, 20-60274, petition for review of final decision of U.S. DOL Administrative Review Board
- Southwick, J. (Jolly, Southwick, Costa), Jolly, J., concurring; labor law
- Denying petition for review of Administrative Review Board (“ARB”) upholding the petitioner’s discharge from his job. Petitioner had argued that he had been discharged for reporting an injury; the ARB had held that he had been discharged for failing to comply with his obligation to promptly report all known injuries and that his eventual report of his injury was not the cause of his discharge.
- Judge Jolly concurred; “The protected activity provision cannot be interpreted to shield an employee from proper disciplinary action when the employee breaches a valid, established, and unchallenged work rule, and no legal legerdemain can make it otherwise.”
Unpublished
- U.S. v. Gass, 18-10523, appeal from N.D. Tex.
- per curiam (Wiener, Southwick, Duncan), criminal, sentencing
- Granting summary affirmance of sentence for guilty plea conviction to conspiracy to possess with intent to distribute a controlled substance.
- Johnson v. Bowe, 19-40615, appeal from S.D. Tex.
- per curiam (Owen, Southwick, Oldham), qualified immunity
- Reversing in part and dismissing for lack of jurisdiction in part appeal from district court’s interlocutory denial of a motion to dismiss plaintiff’s First Amendment retaliation claim on qualified immunity grounds.
- Flores v. Garland, 19-60747, petition for review of BIA order
- per curiam (Wiener, Southwick, Duncan), immigration
- Denying Mexican citizen’s petition for review of BIA order dismissing his appeal from the denial of his application for withholding of removal and relief under the Convention Against Torture.
- U.S. v. Quintana, 20-10567, appeal from N.D. Tex.
- per curiam (Davis, Elrod, Oldham), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- Jeansonne v. Saul, 20-30570, appeal from W.D. La.
- per curiam (Davis, Stewart, Dennis), social security
- Affirming Social Security Administration’s denial of benefits.
- U.S. v. Sanchez-Gomora, 20-40522, appeal from S.D. Tex.
- per curiam (Smith, Stewart, Higginson), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- Singh v. Garland, 20-60256, petition for review of BIA order
- per curiam (Haynes, Willett, Ho), immigration
- Denying Indian citizen’s petition for review of BIA order ismissing his appeal from the denial of his application for withholding of removal and relief under the Convention Against Torture.
- Morales-Duran v. Garland, 20-60397, petition for review of BIA order
- per curiam (Wiener, Southwick, Duncan), immigration
- Denying El Salvadoran citizens’ petition to review BIA order denying motion to reopen proceedings.
Take the Fifth 