November 18, 2021, opinions

Posted on by tadbartlett

Designated for publication

  • Gomez v. Galman, 20-30508, appeal from E.D. La.
    • per curiam (Stewart, Ho, Engelhardt), Ho, J., concurring; 1983
    • Reversing 12(b)(6) dismissal of plaintiff’s section 1983 claims against two off-duty New Orleans Police officers who savagely beat him, reversing dismissal of state-law negligent hiring/training/retention claims against the City of New Orleans, but affirming dismissal of Monell claims against the City and respondeat superior claims against the City, and remanding for further proceedings.
    • The Court held that the plaintiff’s allegations were sufficient to state a claim that the officer defendants were acting under color of state law when they beat him twice at a local bar. “First, Gomez alleges that when he exited the bar, Sutton ‘acting as a police officer, gave Mr. Gomez a direct order to stop and not leave the patio area of the bar.’ Gomez obeyed this order. Then, when he attempted to drive away after getting violently beaten, Sutton and Galman ‘ordered him to stop’ and ‘ordered [him] to step out of his vehicle.’ Gomez claims that ‘[b]ecause they acted like police officers, [he] believed he was not free to leave, and did as he was ordered.’ These allegations are key.” The Court also found significant the plaintiff’s allegations that, when they beat him a second time, the officers held him prone on his stomach in a “police hold,” and that after beating him unconscious they called for NOPD backup.
    • The Court held that, while the plaintiff’s allegations against the City could not support a Monell claim against the City under section 1983 or of a respondeat superior claim under Louisiana law, they were sufficient to state a state-law claim for negligent hiring, training, and retention.
    • Judge Ho concurred fully. “Moreover, although reasonable minds can debate whether the misconduct alleged here is actionable under § 1983, it is unquestionably contemptible. Accepting the allegations in the complaint as true, as we must at this stage, Jorge Gomez is a U.S. citizen and decorated military veteran of Honduran descent. On the night in question, he visited a local bar, proudly wearing his military regalia. Officers Galman and Sutton ordered Gomez to approach. They called him a ‘fake American’ and a ‘liar’ and told him to ‘go back’ to wherever he came from. They attempted to strip off his military clothing. And then they brutally beat him until two bystanders intervened to stop the attack. They left Gomez sprawled across a patio table, bruised and bloodied. After he managed to get up, Gomez entered his car and began driving away. But the officers ordered him to stop and exit his vehicle. Believing he had no choice, Gomez complied. The officers then knocked Gomez to the ground, forced him onto his stomach, held his arms behind his back, and beat him unconscious. ‘Nothing is more corrosive to public confidence in our criminal justice system than the perception that there are two different legal standards.’ United States v. Taffaro, 919 F.3d 947, 949 (5th Cir. 2019) (Ho, J., concurring).”
  • Carver v. Atwood, 21-40113, appeal from E.D. Tex.
    • Oldham, J. (Jolly, Elrod, Oldham), 1983
    • Reversing district court’s sua sponte dismissal with prejudice after the clerk had entered a default against the defendants, and without notice to the plaintiff or an opportunity to respond, for lack of subject-matter jurisdiction of plaintiff’s claims against prison officers arising from sexual assault, on basis that plaintiff had sued the officers in their official capacity rather than their individual capacities.
    • “We first ask whether the district court has a general power to dismiss cases sua sponte. It does. Then we ask whether the court has the power to dismiss a case sua sponte, with prejudice, and without giving the plaintiff notice or an opportunity to respond. It does not.”

Unpublished

  • U.S. v. Avalos-Rodriguez, 20-10586, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Spence v. Harrison-Dunn, 20-20498, appeal from S.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), prisoner suit
    • Affirming dismissal of suit arising from pre-trial detention.
  • Taylor v. LeBlanc, 20-30523, appeal from M.D. La.
    • per curiam (Elrod, Oldham, WIlson), prisoner suit
    • Dismissing as frivolous appeal from dismissal of prisoner’s section 1983 claims.
  • Brenes-Lezama v. Garland, 20-60126, petition for review of BIA order
    • Davis, J. (Davis, Haynes, Oldham), immigration
    • Dismissing as moot Nicaraguan citizen’s petition for review of BIA order upholding the Immigration Judge’s denial of her application for deferral of removal under the Convention Against Torture.
  • U.S. v. Chen, 21-10150, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Affirming conviction of using a means of interstate commerce to attempt to entice a child.
  • U.S. v. Johnson, 21-10180, appeal from N.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Martinez, 21-10435, appeal from N.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal, sentencing
    • Affirming 144-month sentence on conviction of conspiracy to possess with the intent to distribute and distribution of a controlled substance.
  • U.S. v. Hawkins, 21-10500, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Affirming conviction and 324-month sentence for production of child pornography.
  • U.S. v. Saustegui-Perez, 21-10515, appeal from N.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Salgado-Rodriguez, 21-50088, appeal from W.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal
    • Affirming conviction of conspiracy to transport illegal aliens.
  • U.S. v. Hampton, 21-60056, appeal from N.D. Miss.
    • per curiam (Stewart, Haynes, Graves), Haynes, J., concurring in part and dissenting in part; criminal, compassionate release
    • Affirming in part and vacating in part denial of motion for compassionate release, and remanding in light of United States v. Shkambi, 993 F.3d 388 (5th Cir. 2021).
    • Judge Haynes dissented in part, and would have affirmed the district court’s denial of the motion for compassionate release in its entirety.