November 29, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • Sligh v. City of Conroe, 22-40518, appeal from S.D. Tex.
    • per curiam (King, Smith, Elrod), qualified immunity, municipal liability, Americans with Disabilities Act
    • Affirming qualified immunity dismissal of plaintiff’s excessive force claims against K9 officer arising from dog-bite injuries when officers responded to call that plaintiff was suicidal, and bystander liability claims against second officer; and 12(b)(6) dismissal of municipal liability claim against City, and of ADA and Rehabilitation Act claims.
    • The Court engaged in the Graham multi-factor test and determined that, under the circumstances, the decision to sic the canine on the plaintiff was an excessive use of force. “Without any further attempts to subdue Sligh without the use of a dog bite, and without providing Sligh any warning that she may be subjected to a dog bite if she did not comply, Sutton sicced a dog on a woman who (1) was not suspected of any crime; (2) did not pose an immediate safety threat to officers or others; and (3) was in need of emergency medical intervention due to self-harm. Furthermore, Sligh—surrounded by a fence and thick foliage—was not attempting to flee the officers. Employing a dog bite under these circumstances arguably constituted an unreasonable seizure in violation of Sligh’s Fourth Amendment rights.” However, the Court held that the right was not “clearly established,” and that qualified immunity therefore applied. The Court held the same as to the bystander liability claim.
    • The Court then held that the plaintiff failed to adequately allege an inadequate policy, or failure-to-train claim against the City.
    • As to the ADA claim, the Court held that the Plaintiff, assuming arguendo that she qualified as an individual with a disability under the ADA, failed to allege that she requested an accommodation from the officers or that her limitations were known to them.

Unpublished

  • U.S. v. Tapp, 22-30607, appeal from E.D. La.
    • per curiam (King, Haynes, Graves), criminal, sentencing
    • Affirming 30-month sentence on revocation of supervised release, to run consecutively with sentence on second conviction.
  • SEC v. Milles, 22-50736, appeal from W.D. Tex.
    • per curiam (Elrod, Haynes, Douglas), securities fraud
    • Denying IFP motion and dismissing as frivolous pro se appeal from summary judgment in favor of Securities and Exchange Commission arising from securities fraud.
  • U.S. v. Caldwell, 23-10295, c/w 22-10296, appeal from N.D. Tex.
    • per curiam (Jones, Southwick, Ho), criminal, sentencing
    • Affirming 16-month sentence on conviction of failing to register as a sex offender.
  • U.S. v. Perez-Lainez, 23-10581, appeal from N.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.
  • Friemel v. Randall County Sheriff, 23-10861, appeal from N.D. Tex.
    • per curiam (Davis, Willett, Oldham), § 1983
    • Affirming dismissal of civil rights and defamation claims against sheriff.
  • U.S. v. Seneca, 23-30075, appeal from W.D. La.
    • per curiam (Barksdale, Graves, Oldham), criminal, sentencing
    • Affirming 509-month sentence on conviction of kidnapping.
  • U.S. v. Holder, 23-30278, appeal from W.D. La.
    • per curiam (Elrod, Oldham, Wilson), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • Brown v. City of Anna City Hall, 23-40214, appeal from E.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), Title VII, employment discrimination
    • Affirming summary judgment dismissal of employment discrimination claims.
  • Perez v. Livingston, 23-40219, appeal from E.D. Tex.
    • per curiam (Davis, Willett, Oldham), prisoner suit
    • Affirming dismissal of Texas state prisoner’s § 1983 claims.
  • U.S. v. Ibarra-Arzate, 23-50477, appeal from W.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal, sentencing
    • Affirming concurrent 70-month sentences on conviction of conspiracy to possess with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine and for possession with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine.
  • Mushtaq v. Garland, 23-60313, petition for review of BIA order
    • per curiam (Barksdale, Graves, Oldham), immigration
    • Denying Pakistani citizen’s petition for review of BIA order upholding the denial of his application for asylum and withholding of removal.