Aug. 9, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • Hale v. Harrison County Board of Supervisors, 17-60246, appeal from S.D. Miss.
    • per curiam (Davis, Haynes, Oldham), prisoner suit
    • Dismissing appeal of summary judgment dismissal of prisoner’s seventh of at least twelve federal lawsuits and imposition of third strike under the Prison Litigation Reform Act, and barring plaintiff from filing “additional abusive lawsuits.”
  • Rollins v. Home Depot USA, Inc., 20-50736, appeal from W.D. Tex.
    • Ho, J. (Ho, Oldham, Wilson), Rule 59(e)
    • Affirming denial of Rule 59(e) motion that sought relief from summary judgment issued in favor of defendant after it was unopposed when plaintiff’s counsel did not see the e-notification of the filing of the summary judgment motion. “This is a cautionary tale for every attorney who litigates in the era of e-filing.”
    • Four days prior to the deadline for filing summary judgment motions, the defendant employer in this personal injury suit filed a motion for summary judgment. The notice of that filing was filtered into an “other” email inbox in the plaintiff’s counsel’s system, and he did not check that or see the filing. Nor did he check the docket after the summary judgment deadline passed. As a result, he did not file an opposition, and the district court entered summary judgment dismissing plaintiff’s claims. He filed a Rule 59(e) motion, which the district court denied.
    • The Court held that the denial of the Rule 59(e) motion was not an abuse of discretion because the plaintiff’s argument–that the motion for summary judgment went unopposed only because of a glitch in his counsel’s email system–“is squarely foreclosed under our precedent.” (Citing Trevino v. City of Fort Worth, 944 F.3d 567, 570 (5th Cir. 2019). The Court found that “Rollins’s counsel was plainly in the best position to ensure that his own email was working properly…. Moreover, Rollins’s counsel could have checked the docket after the agreed deadline for dispositive motions had already passed.”
    • The Court also held that the plaintiff’s argument on the merits of the summary judgment motion, that there were genuine disputes of material fact, had been forfeited by his failure to raise it before the district court in his Rule 59(e) motion.

Unpublished

  • Speer v. Lumpkin, 13-70001, c/w 19-70001, appeal from E.D. Tex.
    • per curiam (Jones, Stewart, Costa), habeas corpus
    • On petition for panel rehearing, granting panel rehearing, withdrawing Feb. 25, 2021 opinion, and substituting with new opinion, though with same ultimate disposition. Affirming district court’s judgment that petitioner could not establish prejudice from any failure by counsel to adequately investigate mitigation evidence.
  • U.S. v. Rodgers, 20-11087, appeal from N.D. Tex.
    • per curiam (Clement, Higginson, Engelhardt), criminal, Armed Career Criminal Act
    • On petition for panel rehearing, granting panel rehearing and substituting new opinion in place of June 4, 2021 opinion, though with same disposition. Affirming district court’s sentence under the ACCA.
  • Green v. BP Exploration & Production, Inc., 20-30617, appeal from E.D. La.
    • per curiam (Jolly, Haynes, Oldham), MDL
    • Affirming district court’s judgment rejecting plaintiff’s argument that his failure to opt out of settlement agreement should be excused.
  • U.S. v. Cabanas-Castaneda, 20-40058, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Arguelles, 20-40386, appeal from E.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Nunley, 20-50008, appeal from W.D. Tex.
    • Southwick, J. (Higginbotham, Southwick, Engelhardt), criminal, sentencing
    • Affirming 188-month sentence on conviction of one count of conspiracy to distribute synthetic cannabinoids and one count of possession with the intent to distribute synthetic cannabinoids.
  • Santos-Palacios v. Garland, 20-60123, petition for review of BIA order
    • per curiam (Smith, Stewart, Willett), immigration
    • Denying Honduran citizens’ petition for review of BIA order dismissing appeal from denial of application for asylum, withholding of removal, and protection under the CAT.