August 28, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • J.W. v. Paley, 21-20671, appeal from S.D. Tex.
    • Willett, J. (Graves, Willett, Engelhardt), Graves, J., dissenting in part; Americans with Disabilities Act, due process
    • Although disagreeing with the district court that an administrative exhaustion requirement applied to mother’s ADA and due process claims after her special needs child was tased by a school resource officer while child was physically struggling with school staff while attempting to leave school after a violent episode, ultimately affirming summary judgment dismissal of claims; holding that the school resource officer did not tase the child because of his disability and that the tasing did not equate to excessive corporal punishment in violation of due process.
    • Judge Graves dissented in part. He agreed that no administrative exhaustion requirement applied to the claims, but disagreed that the disability claims were not viable on the merits. “The issue is whether Paley tackled and tased him repeatedly because he believed that it was necessary to keep Washington safe, as he says now, or because of indifference, ill will, hostility or discriminatory intent. Paley’s statements that ‘you do not run shit around here’ and ‘I got tired of wrestling with him so I popped him’ fall squarely into the latter category.”
  • Lousteau v. Holy Cross College, Inc., 22-30407, appeal from E.D. La.
    • per curiam (King, Smith, Elrod), personal tort
    • Vacating dismissal of suit arising from sexual abuse of plaintiff while he was a minor by priest employed by college, and remanding to district court in light of T.S v. Congregation of Holy Cross S. Province, Inc., 2023 WL 4195778 (La. June 27, 2023); holding that district court erred in finding Louisiana’s Revival Provision unconstitutional, and that it should instead dismiss on the basis that the Revival Provision was inapplicable to plaintiff’s claim and also consider whether he should be granted leave to amend his suit.

Unpublished

  • U.S. v. Morales, 22-51102, appeal from W.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Johnson, 23-10086, appeal from N.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Camacho, 23-10087, appeal from N.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Nino, 23-20011, appeal from S.D. Tex.
    • per curiam (Jones, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Gomez v. Kuku, 23-40213, appeal from E.D. Tex.
    • per curiam (Jones, Higginson, Ho), prisoner suit
    • Dismissing as frivolous appeal from dismissal of Texas state prisoner’s § 1983 claims that prison officials were conspiring to have him killed.