Take the Fifth

Designated for publication

• Guerra v. Castillo, 22-40196, appeal from S.D. Tex.
  • Higginson, J. (Richman, King, Higginson), § 1983, municipal liability, qualified immunity
  • Affirming dismissal of plaintiff’s municipal liability claim against city, but reversing in part the qualified immunity dismissal of claim against police chief, arising from plaintiff’s § 1983 claims for false arrest, malicious prosecution, and First Amendment retaliation regarding his termination from the police department and arrest for various ginned-up petty offenses.
  • The Court held that plaintiff’s allegations presented a plausible false arrest claim showing a violation of clearly established rights by the police chief. “Guerra’s complaint presents Castillo as the sole moving force behind a deliberate, long-term conspiracy to create and file affidavits Castillo knew to be false, with the purpose of exploiting the criminal justice system to arrest, detain, and torment Guerra for crimes Castillo knew he did not commit. Castillo, moreover, ordered the sham investigations that served as the bases for the false affidavits and pushed the investigations forward despite knowing Guerra was innocent. … Castillo … acted on a personal vendetta, and he exploited the criminal justice system to exact revenge.”
  • The Court held that Fifth Circuit precedent foreclosed “the possibility of a constitutional malicious prosecution claim” at the time of the alleged misconduct (i.e., in 2018 and 2019, prior to the overruling of that precedent in 2021).
  • The Court affirmed dismissal of the First Amendment retaliation claim because, while the allegation of the complaint sufficiently allege that plaintiff’s refusal to direct a subordinate to drop DWI charges against the mayor’s close associate at the direction of the police chief was a but-for cause of his termination and arrest, no law put forward by the plaintiff showed that the refusal to do as the police chief asked was First Amendment-protected speech.
  • As to the municipal liability claims, the Court held that the plaintiff failed to show that the mayor and the police chief were policymakers for the City under the City’s charter.

Unpublished

• U.S. v. Ochoa, 22-11089, appeal from N.D. Tex.
  • per curiam (King, Haynes, Graves), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Greenough v. Gray, 22-40190, appeal from E.D. Tex.
  • per curiam (Wiener, Elrod, Engelhardt), prisoner suit, appellate jurisdiction
  • Dismissing Texas state prisoner’s appeal of order denying default judgment on his § 1983 claims, for lack of appellate jurisdiction.

• U.S. v. Vela, 22-40402, appeal from S.D. Tex.
  • per curiam (Engelhardt, Willett, Oldham), criminal, sentencing
  • Affirming 240-month sentence on conviction of conspiring to possess with intent to distribute 50 grams or more of methamphetamine.

• U.S. v. Idowu, 23-10113, appeal from N.D. Tex.
  • per curiam (King, Haynes, Graves), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Nino-Guerrero, 23-10232, appeal from N.D. Tex.
  • per curiam (Jones, Southwick, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Tolliver, 23-30292, appeal from W.D. La.
  • per curiam (King, Haynes, Graves), criminal, sentencing
  • Affirming 120-month sentence on conviction of money laundering.

• U.S. v. Grever, 23-40051, appeal from S.D. Tex.
  • per curiam (Stewart, Elrod, Southwick), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Wilkes, 23-40158, appeal from S.D. Tex.
  • per curiam (Stewart, Elrod, Southwick), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Nogales v. Garland, 23-60150, petition for review of BIA order
  • per curiam (Willett, Duncan, Douglas), immigration
  • Denying Ecuadoran citizen’s petition for review of BIA order denying his motion for reconsideration and motion to reopen.