March 21, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • Allen v. Hays, 21-20337, appeal from S.D. Tex.
    • Smith, J. (Smith, Barksdale, Haynes), qualified immunity, Equal Protection, municipal liability
    • Reversing dismissal of plaintiffs’ excessive force, denial of medical care, and unlawful arrest claims arising from fatal shooting during routine traffic stop; affirming dismissal of remaining claims for unlawful arrest and detention and racial discrimination; and denying as moot motion to reassign to new trial court judge on remand.
    • With regard to the excessive force claim, arising from Officer Hayes’ firing of five shots into the driver at point-blank range after the driver kept his hands in view and informed the officers he was only reaching for his wallet after the other officer told him to do so, the Court held that the allegations of the complaint were sufficient to survive the first step of the qualified immunity inquiry: “Plaintiffs have alleged that Allen was not carrying a gun (nor was there a gun in the car), that a reasonable officer would have known there was no gun, and that Allen never reached outside the officer’s line of sight. Hayes had a taser he could have used instead of a gun, but he did not. Hayes never warned Allen that he would shoot. Taking these allegations as true, plaintiffs have pleaded sufficient facts plausibly to allege that Hayes’s decision to shoot Allen was an excessive use of force.” The Court also held that the second step of the inquiry was cleared: “It was well established, at the time of the shooting, that such use of deadly force against a person who the officer knows is not dangerous is a constitutional violation. Plaintiffs have plausibly alleged that Hayes knew Allen was unarmed and not aggressive.”
    • The Court affirmed the dismissal of the unlawful detention claim for the initial traffic stop, citing to inconsistent allegations in the plaintiffs’ complaint on the issue. However, the Court vacated the dismissal of the unlawful arrest claim arising from the officers’ pulling of the driver from the car after he had been shot five times and placing him on the ground and handcuffing him.
    • The Court also vacated the dismissal of the plaintiffs’ denial of medical care claim. “As alleged, Hayes stood by for six minutes without performing any medical care or calling for medical backup, aware that he had shot Allen several times and witnessed him crash into a tree, and after he had radioed for police backup for himself. In this posture, that is sufficient to survive a motion to dismiss.”
    • The Court affirmed the dismissal of the equal protection claim, as the only evidence in the record showed disparate impact in the disproportionate traffic stops of Black drivers, but lacked evidence of discriminatory purpose.
    • The Court affirmed the dismissal of municipal liability claims, rejecting that the city’s awarding of the shooting officer with an award for bravery from the night of the shooting was sufficient evidence of ratification on which to base Monell liability.
    • The plaintiffs’ motion for reassignment was mooted because the trial court judge took senior status while the appeal was pending, and all of his pending cases were reassigned.
  • U.S. v. Gonzalez, 22-20158, appeal from S.D. Tex.
    • Higginson, J. (Barksdale, Southwick, Higginson), criminal, sentencing
    • Affirming 360-month sentence from agreed-to plea agreement for conspiracy to participate in racketeering activity, upholding district court’s denial of request for 60-month downward variance on finding that defendant had been involved in an attempted murder and a murder.
  • Allen v. U.S. Postal Service, 22-30297, appeal from E.D. La.
    • Higginson, J. (Barksdale, Southwick, Higginson), employment discrimination, retaliation, Age Discrimination in Employment Act
    • Affirming in part and reversing in part summary judgment in favor of USPS on employee’s age discrimination and retaliation claims, and remanding for further proceedings.
    • The Court held that the plaintiff presented sufficient evidence to support a prima facie case of age discrimination as to her second termination from the USPS central station, through affidavit evidence showing disfavorable treatment to a similarly situated younger worker, and showing age-related disparaging remarks by supervisors.
    • The Court held that the six-month gap between the plaintiff’s initial EEO contact and her termination was too long to support a prima facie showing of retaliation for purposes of her retaliation claim stemming from her initial EEO contact; but that she had made a prima facie showing of a retaliation claim related to a second EEO contact that was seven weeks prior to her termination. The Court also held that the district court erred in dismissing the plaintiff’s retaliation claim related to her subsequent non-hiring at a different post office.

Unpublished

  • U.S. v. Ajayi, 21-10728, appeal from N.D. Tex.
    • per curiam (Richman, Elrod, Oldham), criminal, sentencing
    • Affirming conviction and 151-month sentence for involvement in pill mill.
  • U.S. v. Maslovar, 22-10194, appeal from N.D. Tex.
    • per curiam (King, Higginson, Willett), criminal, restitution
    • Affirming $7,000 restitution award as part of sentence for possession of child pornography.
  • U.S. v. Delgado-Adame, 22-10586, appeal from N.D. Tex.
    • per curiam (King, Higginson, Willett), criminal, sentencing
    • Affirming 60-month sentence on conviction of illegal reentry.
  • U.S. v. Martinez, 22-10724, appeal from N.D. Tex.
    • per curiam (Stewart, Dennis, Willett), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Jacobs, 22-10806, appeal from N.D. Tex.
    • per curiam (Davis, Duncan, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Pierre, 22-30086, appeal from W.D. La.
    • per curiam (King, Higginson, Willett), criminal, sentencing
    • Affirming convictions for possession of a firearm and ammunition after a felony conviction and possession of a firearm in furtherance of a drug-trafficking crime, but vacating 288-month concurrent sentences for possession-by-a-felon offenses as impermissibly in excess of the statutory maximum sentence, and remanding for resentencing.
  • Lightfoot v. Gilley, 22-30374, appeal from W.D. La.
    • per curiam (Wiener, Elrod, Engelhardt), prisoner suit
    • Reversing the striking of Louisiana state prisoner’s suit from docket, and remanding for further proceedings.
  • U.S. v. Leal, 22-40645, appeal from S.D. Tex.
    • per curiam (Stewart, Dennis, Willett), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Mejia-Turquiz, 22-50906, appeal from W.D. Tex.
    • per curiam (Stewart, Dennis, Willett), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.
  • Ignacio v. Garland, 22-60197, petition for review of BIA order
    • per curiam (Stewart, Dennis, Willett), immigration
    • Denying Mexican citizen’s petition for review of BIA order denying withholding of removal and protection under the CAT.