Take the Fifth

Designated for publication

• Thibodeaux v. Sanofi U.S. Services, Inc., 20-30104, appeal from E.D. La.
  • Southwick, J. (Jolly, Southwick, Costa), timeliness, contra non valentem
  • Affirming district court’s summary judgment dismissal of products liability claims regarding permanent hair loss from chemotherapy drug Taxotere, on the basis that the claims were facially prescribed under Louisiana law and that they were not equitably tolled under the doctrine of contra non valentem. The district court had accepted the MDL master complaint’s allegation that hair loss lasting longer than six months qualified as “permanent hair loss” for purposes of the plaintiffs’ claims. The district court then held that the plaintiffs had sufficient knowledge of their claims for permanent hair loss after six months from completion of their chemotherapy.
  • The Court held that, under La. Civil Code article 3492, the one-year prescriptive period began to run from the point that plaintiffs had knowledge of their injury, which the master complaint defined as six months after the completion of chemotherapy. The Court contrasted article 3492 with other prescriptive statutes in Louisiana law: “For example, for medical-malpractice and property damage cases, Louisiana statutes explicitly incorporate equity-based principles into the text that delay the beginning of the prescription period. Those statutes explicitly delay commencement of prescription until ‘the date of discovery’ or when the owner ‘acquired, or should have acquired, knowledge of the damage,’ respectively. La. Stat. Ann. § 9:5628; La. Civ. Code art. 3493. There is no similar text in Article 3492. The distinction matters.”
  • The Court held that the discovery-rule prong of contra non valentem did not toll the prescriptive period as to plaintiffs who did not subjectively discover the cause of their permanent hair loss until seeing lawyer advertisements several years after their chemotherapy, because they had sufficient notice of an injury as to provide a reasonable basis for inquiry into the source of their injury. “Louisiana law strikes a balance: plaintiffs who believe they may have been damaged should not rush to file against everyone who may be involved, but a plaintiff will be responsible to seek out those whom he believes may be responsible for a specific injury. Any other result would allow plaintiffs to say they became aware of the information needed to file suit within the prescription period, and [n]o one could dispute [their] subjective state of awareness. Such a result is untenable.” (Internal quotation marks and citations omitted).” The Court held, “Plaintiffs are not entitled to wait to sue until they are certain of what and/or who caused their injury.”
  • The Court ratcheted down on the Louisiana concept that the reasonable-inquiry standard should take into account the intelligence and sophistication of the particular plaintiff. “While we heed the Supreme Court of Louisiana’s guidance that reasonableness is assessed ‘in light of [the plaintiffs’] education [and] intelligence,’ Campo, 828 So. 2d at 511, we conclude that medical literature linking Taxotere to permanent hair loss is relevant insofar as Appellants’ reasonable inquiry would have uncovered it. To the extent what was discovered was difficult to understand, the patient’s consulting her oncologist, dermatologist, or other treating physician as to the meaning of the information would be part of diligence.”

• U.S. v. Huerta, 20-50343, appeal from W.D. Tex.
  • Elrod, J. (Elrod, Willett, Engelhardt), criminal, sentencing, supervised release
  • On sentencing on a guilty plea to possession of a firearm by a felon, affirming application of a four-level enhancement for possession of the firearm ‘in connection with another felony offense’—distribution of methamphetamine; and affirming delegation to a probation officer the supervision of the “modality, duration, intensity, etc.” of drug treatment required as part of the term of supervised release.
  • The Court held that the district court properly took into consideration 81.6 grams of methamphetamine and almost $10,000 in cash at the scene of the arrest in applying the four-level enhancement for possession of the firearm in connection with the felony offense of drug trafficking.
  • The Court then held that there was no plain error in the delegation of modality, duration, and intensity of the drug treatment special condition to a probation officer. “Huerta’s participation in treatment is mandatory; the probation officer ‘supervise[s] the participation’; and the phrase ‘modality, duration, intensity, etc.’ parenthetically describes that supervision. There is no indication here that the probation officer would be able to lock Huerta up for inpatient treatment, which would be a significant deprivation of liberty following Huerta’s relatively short sentence.”

• Batyukova v. Doege, 20-50425, appeal from W.D. Tex.
  • Southwick, J. (Davis, Southwick, Costa), qualified immunity
  • Affirming summary judgment dismissal on qualified immunity grounds of § 1983 claims against off-duty deputy alleged to have engaged in unjustified use of deadly force and failure to provide medical attention.
  • The Court held that clearly established law did not prohibit “using deadly force against a person who (1) repeatedly ignored commands, such as to show her hands, to place her hands on the hood of her vehicle, or to get down; and then (2) reached her hand behind her back towards her waistband, which the officer perceived to be a reach for a weapon to use against him.”
  • The Court also held that the district court did not err in dismissing the plaintiff’s claim of retaliation for protected First Amendment conduct. “The undisputed evidence shows that, during the encounter, Batyukova said ‘f*ck you,’ ‘f*ck America,’ and ‘I hate America.’ She also engaged in the expressive conduct of displaying her middle finger to the deputy.” The Court held, however, that this First Amendment protected conduct was not the “but-for” cause of the retaliatory conduct (shooting the plaintiff five times).
  • The Court also upheld the district court’s dismissal of the plaintiff’s deliberate indifference claims, on the undisputed facts that the defendant immediately called for medical help, even though he did not himself render assistance.

Unpublished

• Lewis v. Lumpkin, 19-10303, appeal from N.D. Tex.
  • per curiam (Davis, Stewart, Dennis), habeas corpus
  • Affirming denial of habeas relief on § 2254 petition regarding failure of trial judge to recuse himself.

• U.S. v. Nichols, 19-11335, appeal from N.D. Tex.
  • per curiam (Davis, Elrod, Oldham), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Perez-Barrientos, 19-41055, appeal from S.D. Tex.
  • per curiam (Smith, Stewart, Higginson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Reyes, 19-50592, appeal from W.D. Tex.
  • per curiam (Smith, Stewart, Higginson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Fuentes v. Garland, 19-60853, petition for review of BIA order
  • per curiam (Haynes, Willett, Ho), immigration
  • Denying Guatemalan citizen’s petition for review of BIA order denying her appeal of IJ order dismissing her applications for asylum, withholding of removal, and relief under the Convention Against Torture.

• U.S. v. Mays, 20-10350, appeal from N.D. Tex.
  • per curiam (King, Elrod, Willett), criminal, sentencing
  • Affirming conviction and sentence to sixty-months’ imprisonment and order to pay $1,675,669.44 in restitution after pleading guilty to false bankruptcy declaration.

• U.S. v. Whitehouse, 20-10633, appeal from N.D. Tex.
  • per curiam (Clement, Higginson, Engelhardt), criminal, sentencing
  • Affirming 224-month sentence on conviction for conspiracy to possess with intent to distribute a controlled substance, namely a substance containing a detectable amount of methamphetamine.

• U.S. v. Okoro, 20-20631, appeal from S.D. Tex.
  • per curiam (Davis, Stewart, Dennis), criminal
  • Affirming revocation of naturalization on grant of Rule 12(c) motion.

• Foret v. Waste Connections Bayou, Inc., 20-30685, appeal from E.D. La.
  • per curiam (Jolly, Elrod, Graves), appellate jurisdiction
  • Dismissing appeal for lack of jurisdiction, where appeal was taken from an order staying the case.

• U.S. v. Tapia-Tolentino, 20-40572, appeal from S.D. Tex.
  • per curiam (Smith, Stewart, Higginson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Guzman-Ayala v. Garland, 20-60220, petition fore review of BIA order
  • per curiam (Davis, Stewart, Dennis), immigration
  • Denying El Salvadoran citizen’s petition to review BIA order denying his appeal of IJ order dismissing his applications for asylum, withholding of removal, and relief under the Convention Against Torture

• U.S. v. Hales, 20-60359, appeal from S.D. Miss.
  • per curiam (Davis, Stewart, Dennis), criminal, sentencing
  • Affirming sentence, dismissing without prejudice to seeking relief on post-conviction proceedings regarding defendant’s IAC claim.

• U.S. v. Shabazz, 20-60687, appeal from S.D. Miss.
  • per curiam (Clement, Higginson, Engelhardt), criminal, sentencing
  • Dismissing appeal of 90-month sentence on guilty-plea conviction for possession of a firearm by an unlawful user of a controlled substance.

• Guidry v. Lumpkin, 20-70005, appeal from S.D. Tex.
  • per curiam (Willett, Ho, Oldham), habeas corpus
  • Denying certificate of appealability for federal habeas relief from death sentence after resentencing upon grant of habeas relief for initial sentencing.

• U.S. v. Price, 21-20029, appeal from S.D. Tex.
  • per curiam (Davis, Stewart, Dennis), criminal, pretrial release
  • Affirming district court’s revocation of pretrial release.