Take the Fifth: June 2-3, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • Butler v. Porter, 19-30029, appeal from W.D. La.
    • Haynes, J. (Owen, Dennis, Haynes), Bivens claim
    • Affirming in part, affirming the district court’s dismissal of Bivens claim for First Amendment retaliation claims and for due process claims, and affirming the district court’s denial of motions to file surreply briefs and to file amended complaints; and dismissing in part his appeal of a denial of a motion for appointment of counsel at the district court
    • The Court held that it was bound by its recent decision in Watkins v. Three Admin. Remedy Coordinators of Bureau of Prisons, 19-40869 (5/24/21), that declined to extend Bivens to First Amendment retaliation claims.
    • The Court also held that the plaintiff had no protectible property or liberty interest in his custody classification, such that the district court did not err in dismissing his claim for deprivation of due process in being housed in the prison’s “special housing unit.”
    • The Court held that it did not have jurisdiction to hear an appeal from the Magistrate’s denial of a motion for appointment of counsel.
    • The Court held that the district court did not abuse its discretion in denying a motion to file a surreply brief, or in denying motions to file amend complaints.
  • Miller v. Reliance Standard Life Ins. Co., 20-30240, appeal from E.D. La.
    • Duncan, J. (Haynes, Duncan, Engelhardt), insurance, ERISA
    • Reversing summary judgment for life insurer on coverage issue under long-term disability policy, rendering judgment for insured, and remanding to district court to determine amount of benefits.
    • The insured had been out on disability when the insurer here took over the disability coverage through the insured’s employer. When the insured came back to work from his disability leave and was injured again and sought long-term disability benefits, the insurer took the position that his prior disability leave was a gap in coverage and precluded benefits as occurring due to a preexisting condition. The district court granted the insurer summary judgment on that basis.
    • The Court held that the district court misinterpreted the plan’s Transfer Provision, “which determines whether employees covered under the group’s previous plan with Prudential remained continuously insured when Reliance’s policy took effect.” The Court agreed with a recent Sixth Circuit opinion interpreting the same policy language to hold that, “in the context of the Transfer Provision, the phrase ‘active, full-time’ employees must be construed in the insured’s favor to include those who, on the relevant date, are current employees even if not actually working.”

Unpublished

  • Nelson v. Marques, 19-11378, appeal from N.D. Tex.
    • per curiam (Higginbotham, Jones, Costa), habeas corpus
    • Affirming dismissal of sec. 2241 petition as barred by appeal and collateral review waiver in guilty plea.
  • U.S. v. Colorado-Cuero, 19-40126, appeal from E.D. Tex.
    • per curiam (Davis, Elrod, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Hernandez v. Sommers, 19-50784, appeal from W.D. Tex.
    • per curiam (Dennis, Southwick, Engelhardt), IFP
    • Vacating district court’s denial of motion to waive civil filing fees and allow plaintiff to proceed in forma pauperis, granting IFP status, and remanding for further proceedings.
  • U.S. v. Carter, 19-51189, appeal from W.D. Tex.
    • per curiam (Davis, Elrod, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Leal v. Garland, 19-60669, petition for review of BIA order
    • per curiam (King, Smith, Wilson), immigration
    • Granting petition for panel rehearing, substituting new order denying in part and dismissing in part Cuban citizen’s petition for review of BIA order upholding order of removal.
  • Lifshen v. 20/20 Accounting Solutions, LLC, 20-10523, appeal from N.D. Tex.
    • per curiam (Owen, Clement, Higginson), insurance, negligence
    • Affirming in part and reversing in part; affirming summary judgment dismissing breach of contract claim against defendant for failure to pay life insurance premiums, but reversing summary judgment dismissing negligent undertaking claim.
  • U.S. v. Brantley, 20-10531, appeal from N.D. Tex.
    • per curiam (Higginbotham, Jones, Costa), criminal, compassionate release
    • Affirming district court’s denial of motion for compassionate release.
  • U.S. v. Garcia, 20-10553, appeal from N.D. Tex.
    • per curiam (Davis, Elrod, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Herrera, 20-10735, appeal from N.D. Tex.
    • per curiam (Barksdale, Graves, Oldham), criminal, sentencing
    • Affirming 240-month sentence on conviction of conspiracy to distribute and to possess, with intent to distribute, more than 50 grams of pure methamphetamine.
  • U.S. v. Hyde, 20-10772, appeal from N.D. Tex.
    • per curiam (Higginbotham, Jones, Costa), criminal, sentencing
    • Affirming 55-month sentence on conviction of making a false claim against the United States related to a single Vista Machining Company, Inc. (VMC) contract with the Defense Logistics Agency.
  • U.S. v. Jones, 20-10871, appeal from N.D. Tex.
    • per curiam (Higginbotham, Jones, Costa), criminal, search and seizure
    • Affirming conviction of illegal possession of a firearm by a felon, and upholding denial of motion to suppress.
  • U.S. v. Gonzalez, 20-10879, appeal from N.D. Tex.
    • per curiam (Barksdale, Graves, Oldham), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Portillo, 20-10881, appeal from N.D. Tex.
    • per curiam (Jones, Clement, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Marques-Mejia, 20-10973, appeal from N.D. Tex.
    • per curiam (Wiener, Southwick, Duncan), criminal, sentencing
    • Affirming 60-month sentence for illegal reentry.
  • U.S. v. Manriquez, 20-11019, appeal from N.D. Tex.
    • per curiam (Davis, Elrod, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Perez, 20-11120, appeal from N.D. Tex.
    • per curiam (Davis, Elrod, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Pitts, 20-11149, appeal from N.D. Tex.
    • per curiam (King, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Connors v. Halupis, 20-20105, appeal from S.D. Tex.
    • per curiam (Jolly, Elrod, Graves), qualified immunity
    • Dismissing defendants’ appeal of denial of summary judgment on qualified immunity grounds, on finding that there was an unresolved material fact that remained at issue precluding appeal jurisdiction.
  • U.S. v. Vasquez, 20-20302, appeal from S.D. Tex.
    • per curiam (Davis, Elrod, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • McGee v. Acevedo, 20-20350, appeal from S.D. Tex.
    • per curiam (Higginbotham, Smith, Oldham), prisoner suit
    • Dismissing as frivolous appeal from dismissal of prisoner’s sec. 1983 suit, and issuing third strike and barring further IFP proceedings by plaintiff.
  • U.S. v. Johnson, 20-20482, appeal from S.D. Tex.
    • per curiam (King, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Franklin, 20-30453, appeal from M.D. La.
    • per curiam (Jones, Clement, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Codrington v. Vannoy, 20-30460, appeal from M.D. La.
    • per curiam (Jones, Costa, Wilson), prisoner suit
    • Dismissing as frivolous appeal of dismissal of prisoner’s sec. 1983 claim.
  • Colbert v. Paul, 20-30789, appeal from M.D. La.
    • per curiam (Davis, Stewart, Dennis), appellate jurisdiction
    • Dismissing appeal from order denying leave to file amended complaint in sec. 1983 claim, for lack of appellate jurisdiction.
  • U.S. v. Plata-Alvear, 20-40085, appeal from S.D. Tex.
    • per curiam (Davis, Elrod, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Reyes-Hernandez, 20-40416, appeal from S.D. Tex.
    • per curiam (Davis, Elrod, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Jimenez-Archaga, 20-40418, appeal from S.D. Tex.
    • per curiam (Davis, Elrod, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Chaires, 20-40465, appeal from S.D. Tex.
    • per curiam (Higginbotham, Jones, Costa), criminal, sentencing
    • Affirming convictions and within-guidelines range sentences for one count of conspiracy to conceal, harbor, or shield illegal aliens within the United States and three counts of concealing, harboring, or shielding illegal aliens within the United States.
  • U.S. v. Escobedo, 20-40743, appeal from S.D. Tex.
    • per curiam (Davis, Elrod, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Grizzle v. Elliott, 20-50286, appeal from W.D. Tex.
    • per curiam (Higginbotham, Jones, Costa), prisoner suit
    • Vacating district court’s dismissal of prisoner’s sec. 1983 claim for failure to state a claim, and remanding for further proceedings.
  • U.S. v. Davidson, 20-50579, appeal from W.D. Tex.
    • per curiam (Higginbotham, Jones, Costa), criminal, sentencing
    • Affirming sentences on convictions of one count of conspiracy to possess with intent to distribute, and to distribute, 50 grams or more of actual methamphetamine and two counts of distribution of five grams or more of actual methamphetamine.
  • U.S. v. Barr, 20-50656, appeal from W.D. Tex.
    • per curiam (Wiener, Southwick, Duncan), criminal, sentencing
    • Affirming conviction and 36-month sentence for revocation of supervised release.
  • U.S. v. Camacho-Gonzalez, 20-50810, appeal from W.D. Tex.
    • per curiam (Jolly, Elrod, Graves), criminal, sentencing
    • Affirming sentence on conviction of possession of a firearm by an alien and illegal reentry.
  • U.S. v. Cantu, 20-51055, appeal from W.D. Tex.
    • per curiam (Davis, Elrod, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Singh v. Garland, 20-60330, petition for review of BIA order
    • per curiam (Wiener, Southwick, Duncan), immigration
    • Denying Indian citizen’s petition for review of BIA order dismissing his appeal from the denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture.
  • Harris v. Ramey’s Marketplace, 20-60889, appeal from S.D. Miss.
    • per curiam (Higginbotham, Jones, Costa), Title VII, employment discrimination
    • Affirming dismissal of discrimination claim for failure to timely serve process.
  • Salinas-Hernandez v. Garland, 20-60966, petition for review of BIA order
    • per curiam (Clement, Higginson, Engelhardt), immigration
    • Denying in part and dismissing in part El Salvadoran citizen’s petition for review of BIA order dismissing her appeal of the immigration judge’s denial of her motion to reopen her in absentia removal order.