April 28, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • Wilson v. Stroman, 20-50367, c/w Lewis v. Stroman, 20-50372, c/w Mitchell v. Stroman, 20-50380, c/w Miller v. Stroman, 20-50408, c/w Harper v. Stroman, 20-50453, appeal from W.D. Tex.
    • Higginson, J. (Richman, Clement, Higginson), Fourth Amendment, false arrest
    • Reversing dismissal of Fourth Amendment false arrest claims on application of the independent intermediary doctrine, and remanding for further proceedings.
    • Following a deadly shootout among motorcyclists gathered at a Twin Peaks restaurant in Waco, 177 individuals were arrested pursuant to a uniform, “fill-in-the-name” warrant affidavit presented to and signed off by a magistrate judge. Unlike a set of plaintiffs in § 1983 claims known as the Terwilliger plaintiffs, whose claims had been held to survive the motion to dismiss stage, the plaintiffs in these consolidated cases were not just arrested using the form affidavits, but were then also indicted by a grand jury for violation of Texas’s Engaging in Organized Criminal Activity statute. The district court applied the independent intermediary doctrine to dismiss these plaintiffs’ false arrest claims, finding that “the grand jury’s indictment served to break the chain of causation for any false arrest claim pertaining to the form affidavit and the arrest warrant issued by the magistrate judge.”
    • The Court held, “[A] properly secured arrest warrant or grand jury indictment will shield a defendant who has committed or initiated a false arrest. … But the intermediary must be truly independent. Thus, the initiating party may be liable for false arrest if the plaintiff shows that the deliberations of that intermediary were in some way tainted by the actions of the defendant. … Regardless of label, this court has recognized Franks and Malley as functional exceptions to the independent intermediary doctrine.” (Internal citations and quotation marks omitted). The Court then held that “a plaintiff need only show that the deliberations of the intermediary were tainted such that the second intermediary, like the first, did not have all the facts before it necessary to render an independent determination of probable cause.”

Unpublished

  • Cueto-Jimenez v. Garland, 19-60410, petition for review of BIA order
    • per curiam (Stewart, Clement, Elrod), immigration
    • Denying in part and granting in part Mexican citizen’s petition for review of BIA order affirming the denial of his third motion to reopen removal proceedings, and remanding for further proceedings.
  • U.S. v. Hardrick, 20-10952, c/w 20-10953, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Hawkins v. U.S. Department of Housing and Urban Development, 20-20281, appeal from S.D. Tex.
    • Wiener, J. (Wiener, Dennis, Duncan), Administrative Procedures Act, Equal Protection
    • Denying petition for rehearing, withdrawing prior opinion, and substituting with opinion affirming district court’s dismissal of plaintiffs’ APA and FHA claims for lack of jurisdiction for the failure to allege a final and reviewable agency action, and affirming the district court’s dismissal of plaintiffs’ Fifth Amendment Equal Protection claim on the merits for failure to state a claim.
  • Nelson v. Thompson, 20-40733, appeal from E.D. Tex.
    • per curiam (Smith, Stewart, Graves), prisoner suit
    • Dismissing for lack of jurisdiction prisoner’s appeal from district court’s denial of motion for appointment of counsel in prisoner’s § 1983 suit.
  • Decker v. Routledge, 20-40830, appeal from S.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), timeliness
    • Dismissing as frivolous appeal from district court’s dismissal of plaintiff’s third diversity action arising from a purported 2004 conversion of his business.
  • Juarez v. Garland, 20-61198, petition for review of BIA order
    • per curiam (Barksdale, Willett, Duncan), immigration
    • Denying Mexican citizen’s petition for review of BIA order affirming the Immigration Judge’s (IJ) denial of cancellation of removal.
  • Ventura v. Garland, 20-61203, petition for review of BIA order
    • per curiam (Smith, Stewart, Graves), immigration
    • Denying Honduran citizen’s petition for review of BIA order dismissing his appeal of the denial by an Immigration Judge (I.J.) of his application for cancellation of removal.
  • U.S. v. Mata-Benavidez, 21-10777, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Affirming defendant’s conviction of production of child pornography.
  • U.S. v. Albright, 21-11169, appeal from N.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Mechelle v. USA Industries, Inc., 21-20481, appeal from S.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), Americans with Disabilities Act, employment discrimination
    • Affirming summary judgment dismissal of plaintiff’s ADA disability-discrimination claim against her employer.
  • U.S. v. Guzman, 21-20641, appeal from S.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Tello, 21-40427, appeal from E.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal, sentencing
    • Affirming conviction and 360-month sentence for conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine (actual).
  • Zurovetz v. Argenbright, 21-40653, appeal from E.D. Tex.
    • per curiam (Southwick, Graves, Costa), prisoner suit
    • Dismissing as frivolous appeal from dismissal of prisoner’s § 1983 suit.
  • U.S. v. Ovando, 21-40698, appeal from S.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal, sentencing
    • Affirming 168-month sentence on conviction of importation of at least a half kilo of methamphetamine, and remanding for the limited purpose of conforming the written judgment with the oral pronouncement.
  • U.S. v. Rios-Galicia, 21-40830, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.
  • BVS Construction, Inc. v. Brazos County, 21-50821, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), bankruptcy
    • Affirming bankruptcy court order allowing the claims of Brazos County against BVS for delinquent taxes.
  • Pelico-Ajtun v. Garland, 21-60392, petition for review of BIA order
    • per curiam (King, Costa, Ho), immigration
    • Denying Guatemalan citizen’s petition for review of BIA order dismissing his appeal from a decision of the Immigration Judge (IJ) concluding that he was ineligible for asylum, withholding of removal, and relief under the CAT.
  • Stringer v. Downy, 21-60551, appeal from S.D. Miss.
    • per curiam (Elrod, Oldham, Wilson), IFP
    • Dismissing as frivolous appeal from dismissal of repetitive frivolous claims.