Take the Fifth

Designated for publication

• Great American Insurance Co. v. Employers Mutual Casualty Co., 20-11113, appeal from N.D. Tex.
  • Haynes, J. (King, Smith, Haynes), insurance
  • Reversing summary judgment dismissal of plaintiff umbrella insurer’s declaratory judgment claim against defendant umbrella insurer in dispute regarding which umbrella insurer’s policy had priority coverage for a settlement agreement reached in an underlying lawsuit arising from the death of a driver caused by an employee of the insured; and remanding for further proceedings.
  • The district court had “assumed without deciding that the Employers Mutual policy (the ‘EMC Umbrella Policy’) was required to provide coverage before the Great American policy (the ‘Great American Umbrella Policy’). However, the district court granted summary judgment in favor of Employers Mutual, concluding that Great American failed to allocate damages between covered and non-covered claims.”
  • The Court held that the Great American Umbrella Policy, “[b]ecause it was in excess to the EMC Umbrella Policy,” was secondary to the EMC Umbrella Policy under Texas law regarding priority of coverage. “Both policies provided coverage for liability ‘in excess’ of a ‘retained limit.’ However, importantly, the policies differed in how they defined ‘retained limit.’ The EMC Umbrella Policy stated the following: ‘We will pay on behalf of the insured the “ultimate net loss” in excess of the “retained limit” because of “bodily injury” … to which this insurance applies.’ The EMC Umbrella Policy defined ‘retained limit’ as ‘the available limits of all “underlying insurance.”‘ ‘Underlying insurance,’ in turn, was limited to (1) any policies listed under the schedule of underlying insurance and (2) any other insurance available to the insured, but only when such other insurance ‘provides the same type of coverage’ provided in the policies listed in the schedule of ‘underlying insurance.’ The only policy (relevant to this dispute) in the schedule of underlying insurance was the Employers Mutual Primary Policy. Reading these provisions together, the EMC Umbrella Policy provided coverage after the limits of the underlying insurance (i.e., the primary policies) paid out. In other words, the EMC Umbrella Policy provided coverage after all primary coverage was exhausted. In contrast, the Great American Umbrella Policy stated that Great American would pay the sums ‘in excess of the “Retained Limit” that the “Insured” becomes legally obligated to pay.’ ‘Retained Limit’ included ‘the applicable limits of any other insurance providing coverage to the “Insured” during the Policy Period.’ Reading these provisions together, it follows that the Great American Umbrella Policy provided coverage only after all other insurance was exhausted, whether primary or excess.”
  • The Court then held that the district court erred in finding that Great American had not provided sufficient evidence to create a factual dispute on allocation. “Because Great American’s affidavit provided a reasonable basis for allocating damages, the district court erred in granting summary judgment to Employers Mutual.”

• Santos v. White, 20-30048, appeal from M.D. La.
  • Smith, J. (Smith, Stewart, Willett), Willett, J., concurring in judgment; prisoner suit, hearsay
  • Affirming in part and vacating in part district court’s rulings resulting in a dismissal of prisoner’s § 1983 claims of excessive force against prison officials. Affirming the district court decision to admit prison disciplinary reports over the plaintiff’s hearsay objections, but vacating the district court’s holding that those disciplinary reports should result in barring the plaintiff’s claims under Heck v. Humphrey, 512 U.S. 477 (1994).
  • Plaintiff claims that he was beaten by six prison guards in retaliation for his speaking out while they were beating another inmate, that he was then handcuffed and dragged to a shower area where he was sprayed with chemical agents and not allowed to clean them off, and that he was then cut with a knife by one of the guards and then given inadequate medical care for his wounds in the prison medical center. Prison disciplinary records showed that the prison investigation of the incident concluded that the plaintiff had provoked the attack, that he had been uncooperative and violent, breaking one of the guards’ dentures, necessitating the use of the chemical agent, and that he was then found guilty of nine violations and disciplined through the forfeiture of 180 days of good-time credit.
  • The district court reviewed the disciplinary records and held “that, because Santos’s disciplinary violations resulted in the loss of good-time credits, those findings were ‘convictions’ for purposes of the Heck bar. It considered the contradictions between Santos’s allegations and the reports that had accompanied his disciplinary sanctions and concluded that a ruling in Santos’s favor ‘would directly challenge the validity of his convictions.'”
  • The Court held that Heck bars a prisoner’s claim “only if granting it requires negation of an element of the criminal offense or proof of a fact that is inherently inconsistent with one underlying the criminal conviction.” (Internal quotation marks and citation omitted). The Court found, “Though the disciplinary reports list factual findings, the elements required to find a prisoner guilty of those violations do not appear anywhere in the record. It is thus impossible to determine which facts were necessary to the disciplinary board’s conclusions. It may be that the elements of, for instance, aggravated disobedience would be logically incompatible with some of Santos’s claims of excessive force, but the record does not currently permit that inference.” The Court also held that the disciplinary report avers that the plaintiff was cooperative after the first application of chemical agents, so it would not conflict with any of the plaintiff’s claims for conduct after that point. “[I]n applying Heck, a court must bar only those claims that are ‘necessarily at odds with’ the disciplinary rulings, and only with those rulings that resulted in the loss of good time credits.”
  • The Court also held that the admission of the disciplinary reports was not in error because they were not hearsay. “The reports submitted by the defendants were offered to demonstrate that the disciplinary board had found Santos guilty of various offenses, not to prove the truth of the matter, that is, that he actually had committed the offenses.”
  • Judge Willett concurred in judgment. “[M]y colleagues punt on Heck when a hand-off is warranted. Could the record have more information? Absolutely. Do we need more? No. Heck does not categorically compel an element-by-element inquiry, and the majority opinion needlessly complicates things by concluding that the record precludes analysis.” He would have found that all of the pre-shower claims of excessive force were necessarily incompatible with the prison incident report, but that all of the claimed excessive force after that point was necessarily no barred by Heck, rather than including in the remand instructions an opportunity for the district court to reach different findings. Judge Willett also would have reached the same result on the hearsay ruling, but for different reasons. He would find that the prison report was offered for the truth of the matter asserted, the fact findings supporting the finding of violations that are incompatible with the pre-shower claims of the plaintiff. “But we mustn’t lose the forest for the trees. In the end, the majority opinion correctly observes that evidence need not be in admissible form at summary judgment. I would thus hold that the defendants could have later admitted the challenged evidence under any number of theories. This low bar does not compel reversal.”

• Gray v. White, 20-30218, appeal from M.D. La.
  • Smith, J. (Smith, Stewart, Willett), Willett, J., concurring in judgment; prisoner suit, hearsay
  • Affirming in part, vacating in part, and remanding with regard to prisoner plaintiff’s § 1983 claims for excessive force by prison officials.
  • The Court affirmed the dismissal of plaintiff’s claims related to alleged beating during his transport away from shower area–which was distinct from the beating he alleged he received in his cell and the use of a chemical agent on him in the shower area and the denial of the use of the showers to wash it off–on the basis that he had not included the post-shower beating in his initial administrative complaint and that that particular claim was barred under the PLRA for failure to exhaust administrative remedies.
  • The Court vacated the dismissal of the plaintiff’s other claims under Heck v. Humphrey, 512 U.S. 477 (1994). “The record is insufficient to determine whether, or which of, Gray’s claims are barred by Heck. The disciplinary reports list various factual findings but do not state which of these findings were necessary to his convictions” of disciplinary violations. “Moreover, not all of Gray’s disciplinary violations resulted in the loss of good time credits. The reports of the disciplinary board indicate that he forfeited ninety days’ good time as a cumulative sanction for several of his defiance and aggravated-disobedience infractions, all of which were based on conduct occurring within the shower, but that his sanctions for intoxication, contraband, and property destruction instead resulted in fines and loss of privileges. Disciplinary sanctions of this type bear on the ‘circumstances of confinement’ rather than that confinement’s ‘validity’ or ‘duration’ and thus are not barred by Heck.”
  • The Court also upheld the district court’s admission of prison disciplinary reports as not hearsay. “They were not used to establish that Gray actually had done the actions recited in the reports, but only that the report was used to assist the decision of the prison disciplinary board.”
  • Judge Willett concurred in judgment only. Rather than vacating the Heck dismissal, he would have reversed, because the supposed in-cell violations did not result in loss of good-time credits; and because the incident reports provided no justification for the alleged beating of the plaintiff on the way to the shower. Judge Willett also disagreed with the Court’s findings as to administrative exhaustion, but noted that disagreement would not change the result because the plaintiff failed to address the claims subject to the administrative exhaustion argument in his opposition to summary judgment, thus waiving them.

• U.S. v. Moya, 20-40393, appeal from E.D. Tex.
  • Duncan, J. (Higginbotham, Willett, Duncan), criminal, forfeiture, sufficiency of evidence
  • Affirming conviction for possessing a gun in furtherance of a drug trafficking conspiracy, but vacating judgment of forfeiture of entire proceeds of that conspiracy.
  • The Court held that there was sufficient evidence to support the conviction for possession a gun in furtherance of a drug trafficking conspiracy. “Here the signposts point both ways. Pro Moya: (1) the Raven .25 was legally possessed; (2) it was unloaded; and (3) the ammo stored with the gun may or may not have matched it. Contra Moya: (1) he was involved in drug trafficking; (2) the gun was near his bed; and (3) the gun was in a box with drug money. The kind of weapon is a wash: the Raven .25 is neither an antique mounted on the wall, which would suggest benign possession, nor is it particularly dangerous, which would suggest the opposite. But the fact that it is a handgun, a type of gun commonly used in drug trafficking, tips the scales against Moya. Still, the jury heard Moya’s story that the gun was given to him by his father years ago, that it was unconnected to his drug trafficking, and that he stored it unloaded on a shelf to keep it out of his children’s reach. The conflicting evidence does not fatally undermine the verdict. We ask only whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The answer is yes. A jury may choose among any reasonable constructions of the evidence.” (Internal quotation marks and citations omitted).
  • The Court held that the district court plainly erred in ordering the defendant to forfeit $198,000 in cash found in his residence and $4 million “representing the amount of proceeds obtained by Moya as a result of the trafficking conspiracy, for which Moya is personally liable.” “The evidence shows that Don Roberto obtained the vast majority of the trafficking proceeds through Moya’s efforts. This means that Don Roberto, not Moya, obtained those proceeds indirectly. Moya obtained only the $150,000 he personally acquired as profit for his trafficking for Don Roberto.”

• Maradia v. Garland, 20-60714, petition for review of BIA order
  • Haynes, J. (Jolly, Haynes, Oldham), immigration
  • Denying Indian citizen’s petition for review of BIA order denying his second motion to reopen his in absentia deportation proceedings.
  • The Court held that the BIA did not abuse its discretion in finding that the petitioner’s second motion to reopen–filed eight years after the denial of his first motion to reopen–was both time-barred under the statute’s 90-day provision and number-barred under the statute’s 1-motion-to-reopen provision.
  • The Court also held that Pereira v. Sessions, 138 S. Ct. 2105 (2018), does not apply to the issue of notice under the pre-IIRIRA immigration statutes, and that the petitioner’s original in absentia removal pre-dated the 1996 effective date of IIRIRA.

Unpublished

• Velazquez v. Carswell, 20-10800, appeal from N.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), § 1983
  • Affirming dismissal of plaintiff’s suit for deliberate indifference arising from pre-trial detention.

• U.S. v. Castaneda, 20-40290, appeal from S.D. Tex.
  • per curiami (Jolly, Willett, Engelhardt), criminal, sentencing
  • Affirming imposition of certain supervised release special conditions as part of sentence for conviction of being a felon in possession of a firearm.

• U.S. v. Porras-Ballesteros, 20-40861, appeal from E.D. Tex.
  • per curiami (Southwick, Oldham, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Soriano-Benavides v. Garland, 20-60384, petition for review of BIA order
  • per curiam (Southwick, Oldham, Wilson), immigration
  • Denying Salvadoran citizen’s petition for review of BIA order affirming IJ’s dismissal of her applications for asylum, withholding of removal, and relief under the Convention Against Torture.

• U.S. v. Bryson, 21-10061, appeal from N.D. Tex.
  • per curiam (Davis, Jones, Elrod), criminal, sentencing
  • Affirming 42-month sentence on conviction of interstate transfer of stolen property.

• U.S. v. Gonzalez, 21-10185, appeal from N.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Jackson, 21-10249, appeal from N.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Calderon, 21-10271, appeal from N.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Wooley, 21-10284, appeal from N.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Salinas, 21-10328, appeal from N.D. Tex.
  • per curiam (Davis, Jones, Elrod), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Del Angel, 21-10379, appeal from N.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Lucio, 21-10412, appeal from N.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Busby, 21-10437, appeal from N.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Morris, 21-20295, appeal from S.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Vo, 21-40249, appeal from E.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Pacheco-Ortiz, 21-400361, appeal from S.D. Tex.
  • per curiam (Barksdale, Willett, Duncan), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• U.S. v. Hernandez-Guzman, 21-50353, appeal from W.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
  • Granting summary affirmance of sentence on conviction for illegal reentry.

• U.S. v. Barron-Rivera, 21-50403, appeal from W.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.