Designated for publication
- Fisher v. Moore, 21-20553, appeal from S.D. Tex.
- Willett, J. (Richman, Wiener, Willett), Wiener, J., concurring; Title IX, sec. 1983
- Denying rehearing en banc, and withdrawing prior panel opinion and substituting new opinion, reversing denial of qualified immunity dismissal of sec. 1983 claim on state-created danger grounds, and remanding for proceedings of Title IX claims arising from sexual assault of a disabled student by other student that school officials knew to be violent and to have previously sexually assaulted the disabled student and whom school officials knew was unsupervised in the presence of the disabled student.
- “[T]he [Supreme] Court has reiterated—with gusto—that rights protected by substantive due process must be deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty. Without meticulous briefing on how state-created danger liability meets today’s reinvigorated test, we leave the question of adopting the doctrine, and how narrowly to construe it, for another day.” (Internal citations and quotation marks omitted).
- Judge Wiener concurred “in the well-written and well-reasoned opinion written by my colleague, Judge Willett, joined by Chief Judge Richman. Although we are bound by this court’s precedent, I disagree with its refusal to rehear this case en banc and join the ten other circuits that have now adopted the state-created danger cause of action under 42 U.S.C. § 1983, thereby permitting individuals to sue state actors for damages resulting from their acts or failures to act. It is well past time for this circuit to be dragged screaming into the 21st century by joining all those other circuits that have now unanimously recognized the state-created danger cause of action.”
- Nine judges voted against rehearing en banc: Chief Judge Richman and Judges Jones, Smith, Southwick, Ho, Duncan, Engelhardt, Oldham, and Wilson. Seven judges voted in favor of rehearing en banc: Judges Stewart, Elrod, Haynes, Graves, Higginson, Willett, and Douglas.
- Parker v. LeBlanc, 21-30446, appeal from M.D. La.
- Southwick, J. (Higginbotham, Southwick, Willett), prisoner suit
- Affirming denial of motion to dismiss on qualified immunity grounds the Louisiana state prisoner’s sec. 1983 claim that his misclassification as a sex offender impermissibly added 337 days to his incarceration.
- U.S. v. Baez-Adriano, 21-50118, appeal from W.D. Tex.
- Engelhardt, J. (Dennis, Engelhardt, Oldham), Oldham, J., concurring; criminal, sentencing, supervised release
- Affirming imposition of supervised release terms, holding that the judgment complied with oral pronouncement requirements.
- Judge Oldham concurred, to highlight his disagreement with the oral pronouncement requirement: “[O]ur precedents are deeply flawed. Amongst our myriad errors, we elevate spoken words over written judgments—in direct contravention of legal rules that date back centuries. We should reevaluate that approach as an en banc court because, as the majority opinion ably illustrates, this is a recurring problem.” (Internal citations omitted).
- Austin v. City of Pasadena, 22-20341, appeal from S.D. Tex.
- Southwick, J. (Higginbotham, Southwick, Willett), qualified immunity, municipal liability, Americans with Disabilities Act
- Reversing grant of qualified immunity to law enforcement officers on plaintiff’s § 1983 claim arising from restraint and tasing of plaintiff in jail cell while he was having an epileptic seizure, but affirming grant of summary judgment on municipal liability and ADA claims.
- Garcia-Ascanio v. Spring Independent School District, 22-20363, appeal from S.D. Tex.
- Douglas, J. (Wiener, Graves, Douglas), Uniformed Services Employment and Reemployment Rights Act
- Affirming judgment in favor of school district on jury’s verdict, on plaintiff’s USERRA claims that he was constructively discharged because of his service in the military reserve. The Court held that there was sufficient evidence to support the jury’s verdict that the plaintiff would have been constructively discharged even if the school district had not taken his military service into account; that the jury was properly instructed; and that the plaintiff was not entitled to attorneys’ fees.
- Weyerhauser Co. v. Burlington Insurance Co., 22-30164, appeal from W.D. La.
- Wiener, J. (Wiener, Higginson, Wilson), insurance
- Affirming summary judgment in favor of insurers that plaintiff parent company of insured was not an additional insured entitled to coverage.
- Smith v. Lee, 22-30241, appeal from W.D. La.
- Graves, J. (Jones, Smith, Graves), Graves, J., dissenting in part; qualified immunity
- Affirming denial of qualified immunity to officer defendants on plaintiff’s unlawful entry claim, but reversing the denial of qualified immunity on the plaintiff’s excessive force claims.
- Judge Graves dissented in part from his majority opinion, as he disagreed that the officer defendants were entitled to qualified immunity for any force employed from the moment they entered the plaintiff’s house.
- U.S. v. Gaulden, 22-30435, appeal from M.D. La.
- Jones, J. (Jones, Willett, Douglas), Douglas, J., concurring; criminal, search and seizure
- Reversing district court’s grant of a motion to suppress a rap video showing the defendant, a felon, violating federal gun laws, holding that the defendant “had neither a protected property interest in video footage filmed by a third party nor a reasonable expectation of privacy therein.
- Judge Douglas concurred in the judgment. “Had Gaulden presented evidence of his relationship with Ramsey [the videographer]—contractual or otherwise—to support his assertions that he had authority to control the use of Ramsey’s video footage and to exclude others from it, I would affirm. Because he did not, I concur in the judgment. I write separately, however, to address the majority’s emphasis on property-law concepts and its application of the third-party doctrine.”
- Johnson v. Cooper T. Smith Stevedoring Co., 22-30488, appeal from M.D. La.
- Douglas, J. (Richman, Stewart, Douglas), maritime law
- Affirming summary judgment in favor of defendant on plaintiff’s Jones Act claim, on basis that plaintiff had failed to establish a genuine dispute of material fact concerning his seaman status or vessel negligence.
- Shenzen Synergy Digital Co. v. Mingtel, Inc., 22-40440, appeal from E.D. Tex.
- Duncan, J. (Wiener, Southwick, Duncan), breach of contract
- Affirming judgment in favor of plaintiff on breach of contract claims arising from defendant’s rejection of computer tablets it had ordered from plaintiff for resale on the Home Shopping Network.
- Johnson v. Lumpkin, 22-70005, appeal from N.D. Tex.
- Elrod, J. (Elrod, Oldham, Wilson), habeas corpus
- Denying application for certificate of appealability from denial of habeas petition, and affirming denial of motion to recuse the district court judge.
Unpublished
- U.S. v. Richard, 21-30179, appeal from W.D. La.
- per curiam (Stewart, Dennis, Elrod), criminal, supervised release
- Vacating terms of supervised release sentence and remanding for conformance with orally pronounced terms.
- U.S. v. Jacquot, 22-10305, appeal from N.D. Tex.
- per curiam (Haynes, Engelhardt, deGravelles, by designation), criminal, supervised release
- Dismissing appeal of supervised release terms under the fugitive-disentitlement doctrine.
- U.S. v. Felder, 22-10595, appeal from N.D. Tex.
- per curiam (King, Smith, Elrod), criminal, sentencing
- Affirming 24-month sentence on revocation of supervised release.
- U.S. v. Ramirez, 22-10965, appeal from N.D. Tex.
- per curiam (Higginbotham, Stewart, Southwick), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- Sprint Corp. v. Shichinin, L.L.C., 22-11000, appeal from N.D. Tex.
- per curiam (Graves, Higginson, Douglas), arbitration
- Affirming judgment confirming arbitration award.
- Zinsou v. Fort Bend County, 22-20423, appeal from S.D. Tex.
- Graves, J. (Graves, Higginson, Douglas), § 1983
- Affirming dismissal of plaintiffs’ claims arising from their mother’s death on basis that they failed to allege that she was in a “special relationship” with the state.
- Womack v. Dometic Corp., 22-30147, appeal from W.D. La.
- per curiam (Graves, Ho, Duncan), products liability
- Affirming dismissal of plaintiff’s dangerous construction and failure to warn claims against boat manufacturer and steering system manufacturer.
- Weiser v. Castille, 22-30720, appeal from E.D. La.
- per curiam (Stewart, Duncan, Wilson), Rooker-Feldman doctrine, qualified immunity, judicial immunity
- Affirming dismissal of plaintiff’s claims against judges who presided over divorce and successions cases and against other defendants under the Rooker-Feldman doctrine and pursuant to qualified immunity and judicial immunity.
- U.S. v. Bates, 22-40508, appeal from E.D. Tex.
- per curiam (Richman, Southwick, Oldham), criminal, guilty plea
- Affirming guilty-plea conviction for failure to register as a sex offender.
- U.S. v. Campbell, 22-40607, appeal from S.D. Tex.
- per curiam (Haynes, Graves, Duncan), criminal, guilty plea, Sixth Amendment
- Affirming guilty-plea conviction of conspiring to possess with intent to distribute five kilograms or more of cocaine, upholding sufficiency of factual basis for plea and holding that the defendant’s right of self-representation was not violated.
- U.S. v. Bolden, 22-40839, appeal from S.D. Tex.
- per curiam (Haynes, Engelhardt, deGravelles, by designation), criminal, sentencing
- Affirming sentence on revocation of supervised release.
- U.S. v. Munoz, 22-50406, appeal from W.D. Tex.
- per curiam (Richman, Southwick, Oldham), criminal, sentencing
- Affirming concurrent 27-month sentences on convictions of (1) transportation of illegal aliens and (2) fraud and misuse of visas, permits, and other documents.
- U.S. v. Rubio, 22-50497, appeal from W.D. Tex.
- per curiam (Wiener, Elrod, Engelhardt), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Montoya, 22-50893, appeal from W.D. Tex.
- per curiam (Jones, Haynes, Oldham), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- Perez v. Hijar, 22-50904, appeal from W.D. Tex.
- per curiam (Smith, Elrod, Southwick), habeas corpus
- Affirming denial of § 2241 petition.
- U.S. v. Juarez, 22-51033, appeal from W.D. Tex.
- per curiam (Smith, Ho, Engelhardt), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Rivera, 23-10095, appeal from N.D. Tex.
- per curiam (Haynes, Graves, Duncan), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Leiva-Melgar, 23-10196, appeal from N.D. Tex.
- per curiam (Higginbotham, Graves, Ho), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Galvan-Hernandez, 23-40041, c/w 23-40042, appeal from S.D. Tex.
- per curiam (Jones, Southwick, Ho), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- Ross v. U.S., 23-40058, appeal from E.D. Tex.
- per curiam (Dennis, Engelhardt, Wilson), Federal Tort Claims Act
- Dismissing as moot plaintiff’s appeal of dismissal of FTCA complaint after district court reinstated complaint after a Rule 59(e) motion.
- U.S. v. Hernandez-Roldan, 23-50064, appeal from W.D. Tex.
- per curiam (Haynes, Graves, Duncan), criminal, supervised release
- Affirming supervised release terms in sentence on conviction of illegal reentry.
- U.S. v. Gamez, 23-50083, c/w U.S. v. Fajardo-Ruiz, 23-50084, appeal from W.D. Tex.
- per curiam (Higginbotham, Stewart, Southwick), criminal, sentencing
- Affirming conviction and sentence for illegal reentry.
- U.S. v. Lafleur, 23-60077, appeal from S.D. Miss.
- per curiam (Higginbotham, Stewart, Southwick), criminal, sentencing
- Affirming sentence on revocation of supervised release.
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