Take the Fifth

Designated for publication

• Parker v. Hooper, 23-30825, appeal from M.D. La.
  • per curiam (Jones, Haynes, Douglas), Jones, J., dissenting; Eighth Amendment, Americans with Disabilities Act, appellate jurisdiction
  • Dismissing state defendants’ appeal of judgment on liability on Eighth Amendment and ADA class claims on behalf of prisoners at the Louisiana State Penitentiary, and vacating stay of “Remedial Order” that contemplated further proceedings to determine ultimate relief, holding that there was not a final decision entered for purposes of appellate jurisdiction under 28 U.S.C. § 1291 and that there was not an injunction entered yet for purposes of appellate jurisdiction under 28 U.S.C. § 1292(a)(1).
  • After finding liability on deliberate indifference to medical needs of prisoners under the Eighth Amendment, the ADA, and the Rehabilitation Act, the district court held another proceeding that resulted in a judgment that the class was entitled to permanent injunctive relief, and it entered the Remedial Order, which provided for the appointment of three special masters to develop proposed remedial plans and to monitor implementation of those plans. The district court entered a Judgment “entered in favor of Class Plaintiffs” and “against Defendants,” which “closed” the case but retained jurisdiction to review the proposed remedial plans and enter orders “as necessary to effect remedies.”
  • As to § 1291 jurisdiction, the Court held, “Here, there is no final decision sufficient to create appellate jurisdiction under § 1291. The Remedial Order makes plain that the district court did not intend[] to have nothing further to do. The order expressly contemplates future district court action[.] … Purporting to close the case in a document labeled ‘Judgment’ is insufficient to create appellate jurisdiction where it is clear that the case is not actually finished and no substantive relief has been entered.” (Internal quotation marks and citation omitted). In a footnote, the Court rejected the Defendants’ argument that they will never have a judgment from which to appeal: “In other words, once the district court approves the Remedial Plans and thereby awards substantive relief, there will be an appealable final decision, at which point Defendants can challenge that decision and any preceding interlocutory orders.”
  • As to § 1292(a)(1) jurisdiction, the Court found that there was no injunction from which to appeal. “Defendants’ only current obligation under the Remedial Order would be to propose names of potential special masters to the district court. That is not an injunction; it is a typical court directive advancing the litigation.”
  • Judge Jones dissented. “[M]y colleagues in the majority assert that the district court’s Remedial Order and Final Judgment,1 incorporating its previous 124-page Liability Opinion and later 104-page Remedial Opinion, are not sufficiently ‘final’ nor sufficiently ‘injunctive’ to support an appeal under 28 U.S.C. §§ 1291 or 1292(a)(1), respectively. Both holdings are very wrong. If the dismissal is upheld, the Defendants will bear enormous costs to comply with orders that plainly defy the PLRA. The violations are so obvious that the panel majority, while claiming to have no jurisdiction, hint and smuggle in notes about what the district court must change to comply with the PLRA.”

• Ikome v. Bondi, 22-60606, petition for review of BIA order
  • Wilson, J. (Richman, Graves, Wilson), Graves, J., concurring in judgment only (w/o opinion); immigration
  • Dismissing in part and denying in part Cameroonian citizen’s petition for review of BIA affirmance of an immigration judge’s denial of his motion to continue his removal proceedings denial of his motion to remand.

Unpublished

• U.S. v. Fryar, 24-10357, appeal from N.D. Tex.
  • per curiam (Higginbotham, Jones, Oldham), criminal, sentencing
  • Affirming 240-month sentence on conviction of possession with intent to distribute methamphetamine.

• U.S. v. Escalante-Perales, 24-10560, appeal from N.D. Tex.
  • per curiam (King, Southwick, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Boatright, 24-10683, appeal from N.D. Tex.
  • per curiam (Smith, Stewart, Duncan), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Morgan, 24-20054, appeal from S.D. Tex.
  • per curiam (King, Southwick, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Moore v. Houston Refining, L.P., 24-40373, appeal from S.D. Tex.
  • per curiam (Davis, Stewart, Southwick), Age Discrimination in Employment Act, employment discrimination
  • Affirming summary judgment dismissal of ADEA claims.

• U.S. v. Schorovsky, 23-50040, appeal from W.D. Tex.
  • per curiam (Elrod, Willett, Duncan), criminal, sentencing
  • On remand from U.S. Supreme Court, continuing to affirm ACCA-enhanced sentence on the basis that the defendant had failed to show clear error as to the issue affected by the Supreme Court’s decision.

• U.S. v. Salazar-Salazar, 24-50280, appeal from W.D. Tex.
  • per curiam (Haynes, Higginson, Douglas), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Brewster, 24-50447, appeal from W.D. Tex.
  • per curiam (Elrod, Haynes, Duncan), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Reyes, 24-50484, appeal from W.D. Tex.
  • per curiam (King, Southwick, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Ochoa-Juarez, 24-50734, appeal from W.D. Tex.
  • per curiam (Smith, Stewart, Duncan), criminal, sentencing
  • Affirming 21-month sentence for illegal reentry.

• Scott v. Vital Core Strategies, 23-60599, appeal from S.D. Miss.
  • per curiam (Elrod, Jones, Stewart), prisoner suit
  • Affirming summary judgment dismissal of Mississippi inmate’s claims against third-party medical provider to detention facility and other county officials.