January 31, 2024, opinions

Posted on by tadbartlett

Designated for publication

  • Favela v. Collier, 22-40415, appeal from E.D. Tex.
    • Graves, J. (Graves, Higginson, Ho), Ho, J., would affirm (but no dissenting opinion filed); prisoner suit
    • Reversing summary judgment in favor of prisoner officials on basis of failure to exhaust administrative remedies with regard to Texas state prisoner’s § 1983 suit alleging that prison officials failed to prevent his assault by another inmate, and remanding for further proceedings.
    • The Court held that the prisoner’s declaration that he had filed step 1 and step 2 administrative grievances regarding his attack by a fellow inmate after repeatedly informing prison officials that he was in danger was sufficient to establish a genuine issue of material fact in response to the prison officials’ production of the prisoner’s records that showed no grievances for the attack at issue. The Court disagreed with the district court’s finding that the declaration was “conclusory”; “the declaration is not devoid of specific facts. Indeed, Favela provided the general substance of his Step 1 grievance, stated approximately when that Step 1 grievance was filed, and noted that TDCJ failed to respond to his Step 2 grievance. In responding to the defendants’ motion, Favela’s burden was to ‘designate specific facts’ showing that a genuine factual question exists, not to prove exhaustion. Because his declaration contains specific facts to support exhaustion, we conclude that it is not itself conclusory.” (Internal citation omitted).
    • The Court rejected the defendants’ suggestion that a mere declaration should not be able to manufacture a genuine issue of fact by declaring that administrative remedies were exhausted. “Favela did not simply declare that he exhausted his remedies; he provided specific facts to counter the defendants’ prima facie showing. Moreover, he swore to the truth of those representations under penalty of perjury—one fact among others that distinguishes this case from those where we found a litigant’s written statements to be insufficient.”
  • U.S. v. Pena, 23-10167, appeal from N.D. Tex.
    • Graves, J. (Smith, Elrod, Graves), criminal, sentencing
    • Affirming 63-month sentence on conviction of possession of a firearm by a felon.
    • The Court held that the sentencing enhancement for a firearm capable of accepting a large-capacity magazine, even though the firearm jammed when attached to a full magazine, because the ATF officer was able to fire sixteen rounds when the magazine was only filled with sixteen bullets and not all the way full and the Guidelines definition for a large capacity magazine was capability to hold more than fifteen rounds. “Luna-Gonzalez does not require that a firearm have a fully loaded magazine attached to it to meet the compatibility requirement. Moreover, the plain meaning of the statute—in addition to this Circuit’s interpretation of the statute—does not suggest that to be compatible with a firearm the magazine must be fully loaded.”
    • The Court also rejected the defendant’s argument that the district court erred in selecting the sentence length at the top of the Guidelines range because there was no evidence in the record that he was a drug dealer or was a gang member. The Court found that there was evidence in the record to support both findings. “To his credit, Pena maintains that since his release in 2014 he has not been involved in any street gang. However, the district court was not inclined to believe him given the evidence to the contrary, which was well within the district court’s prerogative.”
  • Mire v. University Hospital & Clinics, Inc., 23-30335, appeal from W.D. La.
    • Southwick, J. (Higginbotham, Stewart, Southwick), sanctions
    • Affirming Rule 11(b) sanctions order against plaintiff’s attorney “for presenting frivolous arguments regarding the Defendants’ potential liability as the Plaintiff’s purported employer,” awarding $29,100 in attorneys’ fees and $529 in costs; granting motion for damages, attorney fees, and costs related to appeal; and remanding for calculation of damages.
    • After dismissal of plaintiff’s claims, and dismissal of his subsequent appeal as untimely, plaintiff filed an untimely Rule 60(b) motion alleging defendants had made fraudulent statements in obtaining the prior judgment and alleging that his prior co-counsel had a conflict. The district court declined to reach the merits of the underlying employment discrimination claims as they had been finally determined and the Rule 60(b) arguments were filed more than a year past final judgment, and instead awarded attorneys’ fees and costs under Rule 11(b).
    • The Court held that the plaintiff’s counsel had not even attempted to argue any exceptions to law of the case doctrine would have allowed his Rule 60(b) motion to be considered. “Sanctions were therefore imposed on Mire for continuing to press arguments that had clearly been rejected. … The time to challenge these conclusions [on the merits] has long passed.”
    • The Court rejected appellant’s argument that the imposition of sanctions for frivolous legal argument violated the First Amendment. “[T]he First Amendment is not a bar to the sanctions imposed in this case. Mire was not sanctioned because her novel arguments were frivolous, but because it was frivolous to continue to make the rejected novel arguments.”
    • The Court also held that further sanctions were justified under FRAP 38, because it had already characterized the plaintiff’s counsel’s arguments as frivolous in the prior appeal, and found that the subsequent Rule 11 sanctions were insufficient on their own to deter the counsel from continuing to make frivolous arguments in the current appeal.

Unpublished

  • Harper v. Lockheed Martin Corp., 22-10787, appeal from N.D. Tex.
    • Jolly, J. (Jolly, Southwick, Oldham), Title VII, employment discrimination, Family and Medical Leave Act
    • Affirming summary judgment dismissal of employment discrimination and FMLA claims.
  • U.S. v. Beltran, 22-50939, appeal from W.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Serna, 23-10439, appeal from N.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Traudt v. Data Recognition Corp., 23-10498, appeal from N.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), employment discrimination
    • Affirming summary judgment dismissal of sex discrimination claim.
  • U.S. v. Tyler, 23-20273, c/w 23-20274, appeal from S.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal, sentencing
    • Affirming 480-month sentence on conviction of possessing and distributing child pornography, but remanding for limited purpose of correcting clerical error in written judgment to specify the correct offense as to which the sentencing enhancement applied.
  • Strunk v. Methanex USA, L.L.C., 23-30685, appeal from M.D. La.
    • per curiam (King, Haynes, Graves), employment discrimination
    • Affirming dismissal of plaintiff’s gender-based discrimination claim for failure to timely file suit within 90 days of EEOC’s right-to-sue letter.