April 27, 2023, opinions

Designated for publication

  • Amin v. United Parcel Service, Inc., 22-10295, appeal from N.D. Tex.
    • per curiam (Higginbotham, Jones, Oldham), preemption, personal torts
    • Affirming summary judgment dismissal of intentional infliction of emotional distress claims, but reversing 12(b)(6) dismissal of negligent supervision and invasion of privacy claims, and remanding for further proceedings, on plaintiff’s claims against employer that supervisor denied him a bathroom break in his warehouse job until he was forced to defecate on himself at his workstation.
    • As to the IIED claim, the Court held, “Disgusting though it was, the December 6 incident is alone insufficient under Texas law to satisfy a finding of severe emotional distress. There must be sufficient proof of severe emotional distress, wholly apart from any outrageous conduct on the defendant’s part. While the shocking nature of a defendant’s conduct can be important evidence as a cause of severe distress, it cannot solely carry the day. The incident itself does not do double duty for the impact on the plaintiff.” (Internal quotation marks and citations omitted).
    • The Court held that the Labor Management Relations Act did not preempt plaintiff’s negligent supervision claim. The Court disagreed that the question of what supervision duties were owed in the first place was not inextricably intertwined with the applicable CBA, because the duty question stemmed from Texas law rather than from the CBA.
    • Then, making an Erie guess as to Texas law, the Court held that the supervisor’s conduct was actionable under Texas’s invasion of privacy tort. “[T]he tort described in the Restatement stands for more than physical or auditory invasions. It encompasses Amin’s humiliation as Castro forced him to defecate, a function all civilized humans believe to be manifestly private, in public.”
  • Brewer v. Lumpkin, 22-70006, appeal from N.D. Tex.
    • Jones, J. (Jones, Oldham, Wilson), habeas corpus, ineffective assistance of counsel
    • Denying COA from denial of federal habeas relief from death sentence imposed on resentencing after the petitioner’s initial capital sentence had been vacated by the Supreme Court.
    • The Court held that the petitioner’s IAC claims did not merit a COA. The Court found that the petitioner’s resentencing counsel’s attack of the state’s future-dangerousness expert’s methodology at an evidentiary hearing balanced against the counsel’s failure to preserve an objection to the expert’s testimony for appellate review. The Court found that there was sufficient strategic justification for the failure of resentencing counsel to elicit a fresh reevaluation and new expert opinion from countervailing future-dangerousness experts. The Court also held that there was likely not prejudice from the government’s future-dangerousness expert, in light of other evidence and testimony supporting a future-dangerousness verdict.
    • The Court also found that there was no IAC in the alleged failure to investigate and present an effective mitigation defense at the resentencing. “The same sound strategy undergirding counsel’s decision to forgo an expert examination on future dangerousness also supported the decision to refuse a mental health evaluation.”
    • The Court held that the petitioner’s IAC claims regarding failure to investigate prior bad acts presented by the government in support of its future-dangerousness case were procedurally barred.

Unpublished

  • Byrd v. Clay County, 22-10746, appeal from N.D. Tex.
    • per curiam (Jones, Haynes, Oldham), Family and Medical Leave Act
    • Affirming summary judgment dismissing plaintiff’s FMLA claims.
  • U.S. v. Moore, 22-10899, appeal from N.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Grant, 22-20447, appeal from S.D. Tex.
    • per curiam (Higginbotham, Graves, Ho), criminal, coram nobis
    • Affirming denial of writ of coram nobis challenging convictions.
  • Collins v. Ingle, 22-30153, appeal from E.D. La.
    • per curiam (Jolly, Haynes, Graves), personal torts
    • Affirming judgment that included a reduction of plaintiffs’ damages from 18-wheeler accident based on finding that plaintiffs were 50 percent at fault.
  • U.S. v. Bolanos-Escamilla, 22-40723, appeal from S.D. Tex.
    • per curiam (Davis, Higginson, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Cavender, 22-40742, appeal from E.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Cromey v. Bingham, 22-40751, appeal from E.D. Tex.
    • per curiam (Duncan, Oldham, Wilson), prisoner suit
    • Dismissing as frivolous appeal from dismissal of Texas state prisoner’s § 1983 claims.
  • U.S. v. Sanchez, 22-50348, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, sentencing
    • Affirming 150-month sentence on conviction of conspiracy to possess with intent to distribute, and distribute, five grams or more of actual methamphetamine.
  • U.S. v. Stoglin, 22-50730, appeal from W.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Cardona, 22-50884, appeal from W.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • Mauritz v. Lynn, 22-60371, appeal from S.D. Miss.
    • per curiam (Stewart, Dennis, Southwick), personal torts, Americans with Disabilities Act, Title VII
    • Affirming dismissal of employee/plaintiff’s Title VII claim, but reversing dismissal of ADA hostile environmental claim, and remanding for further proceedings.