March 16, 2023, opinions

Designated for publication

  • Fisher v. Moore, 21-20553, appeal from S.D. Tex.
    • Willett, J. (Richman, Wiener, Willett), Wiener, J., dissenting; qualified immunity
    • Reversing a denial of qualified immunity summary judgment dismissing § 1983 claims against school officials by mother of disabled public-school student who had been sexually assaulted by another student with known violent tendencies, whose teacher allowed the assaulted student and the aggressor to wander the school unsupervised even after knowing about the first assault, and who was then sexually assaulted again by the same student.
    • The Court held that the “state-created danger” doctrine was not a clearly established doctrinal exception in the Fifth Circuit to the general rule that government has no Due Process Clause duty to protect people from privately inflicted harms, because the Circuit had never adopted the doctrine. The Court also refused to find a substantive due process basis for liability that could clear the qualified immunity hurdle “given the Supreme Court’s recent forceful pronouncements signaling unease with implied rights not deeply rooted in our Nation’s history and tradition.”
    • The student subject to the assaults was thirteen years old, but had the cognitive ability of a four- or five-year-old. But, because of the Fifth Circuit’s embrace of the Supreme Court’s recent antagonism to substantive due process and to its ratcheting down to strict historical review of rights, children in our schools do not have a constitutionally protected right to be safe from violent sexual assaults even when the school officials know about them. A reading of the Court’s “clearly-established” analysis is a good view into the train-wreck the Fifth Circuit’s qualified immunity jurisprudence has become.
    • The Court did note that the plaintiff may have remedies available under Title IX.
    • Judge Wiener dissented (the opinion tag notes that it is a concurrence, but in the opinion itself, Judge Wiener refers to both as a dissent and as a concurrence–but the effect of the opinion is as a dissent). “Although we are bound by this court’s precedent, I disagree with its refusal to join the nine other circuits that have adopted the state-created danger cause of action under 42 U.S.C. § 1983 to permit individuals to sue state actors for damages resulting from their acts or failures to act. I am convinced that it is well past time for this circuit to be dragged screaming into the 21st century by joining all of the other circuits that have now recognized the state-created danger cause of action. I acknowledge that we can only do so by taking this case en banc.”
  • Nix v. Major League Baseball, 22-20364, appeal from S.D. Tex.
    • Smith, J. (Smith, Clement, Wilson), tortious interference, sanctions, res judicata
    • Affirming dismissal of plaintiff’s claims as claim-precluded or for failure to state a claim, and affirming imposition of sanctions, as claims had previously been dismissed under 12(b)(6) in several prior lawsuits.

Unpublished

  • Gamboa v. Lumpkin, 16-70023, appeal from W.D. Tex.
    • per curiam (Jones, Smith, Dennis), habeas corpus
    • Dismissing for lack of jurisdiction appeal from denial of motion to dismiss counsel during § 2254 proceeding.
  • U.S. v. Ortiz-Flores, 22-10714, appeal from N.D. Tex.
    • per curiam (Jones, Stewart, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Wright, 22-10762, appeal from N.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Washington v. Katy Independent School District, 22-20050, appeal from S.D. Tex.
    • per curiam (Jones, Smith, Graves), Individuals with Disabilities Education Act
    • Affirming adverse determination by state hearing officer and district court on IDEA claims.
  • U.S. v. Taylor, 22-40468, appeal from E.D. Tex.
    • per curiam (King, Higginson, Willett), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Nelson v. Smith County, 22-40730, appeal from E.D. Tex.
    • per curiam (Haynes, Engelhardt, Douglas), § 1983
    • Dismissing as frivolous appeal from dismissal for lack of standing of mother’s claims on behalf of her imprisoned son.
  • U.S. v. Holguin, 22-50083, appeal from W.D. Tex.
    • per curiam (Higginbotham, Graves, Ho), criminal, First Step Act
    • On government’s appeal, vacating sentence based on safety valve relief under the First Step Act, and remanding for resentencing.
  • U.S. v. Arguelles-Quintero, 22-50386, appeal from W.D. Tex.
    • per curiam (Smith, Southwick, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Chambers v. U.S. Treasury, 22-50414, appeal from W.D. Tex.
    • per curiam (Higginbotham, Duncan, Wilson), prisoner suit
    • Dismissing as frivolous appeal from dismissal of county jail inmate’s § 1983 claims.
  • U.S. v. Gomez-Izazaga, 22-50905, appeal from W.D. Tex.
    • per curiam (Davis, Smith, Douglas), criminal, sentencing
    • Affirming sentence on conviction of illegal reentry.
  • Cromwell v. Boa Vida Hospital of Aberdeen, MS, L.L.C., 22-60109, appeal from N.D. Miss.
    • per curiam (Richman, King, Higginson), employment discrimination, Rehabilitation Act
    • Affirming summary judgment dismissal of former anesthetist’s claims that she had been terminated solely due to disabilities in violation of the Rehabilitation Act.
  • Matei v. Garland, 22-60144, petition for review of BIA order
    • per curiam (Richman, King, Higginson), immigration
    • Granting Romanian citizen’s petition for review of BIA order affirming IJ’s denial of application for asylum and withholding of removal, vacating order, and remanding.
  • Wilburn v. Word, 22-60677, appeal from N.D. Miss.
    • per curiam (Higginbotham, Duncan, Wilson), prisoner suit
    • Dismissing as frivolous appeal from dismissal of Mississippi state prisoner’s § 1983 claims.