Take the Fifth

Designated for publication

• Parker v. Hooper, 23-30825, appeal from M.D. La.
  • Jones, J. (en banc; joined by Elrod, Smith, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson) (oral argument); Southwick, J., concurring only in the holding that the court has jurisdiction to consider this appeal; Richman, J., concurring in part/dissenting in part; Haynes, J., dissenting (joined by Stewart, Graves, Higginson, Douglas, Ramirez); Higginson, J., dissenting (joined by Stewart, Graves, Douglas, Ramirez); Eighth Amendment, Americans with Disabilities Act, appellate jurisdiction, en banc
  • After February 12, 2025, per curiam panel opinion (Jones, Haynes, Douglas; Jones, J., dissenting) dismissing for lack of appellate jurisdiction appeal from judgment on liability on Eighth Amendment and ADA class claims on behalf of prisoners at the Louisiana State Penitentiary, the en banc Court found that appellate jurisdiction existed and vacated the district court’s remedial order in plaintiffs’ favor and remanded for further proceedings.
  • In 2015, a class of inmates at the Louisiana State Penitentiary (“LSP”) at Angola sued prison officials, alleging systemically deficient medical care in violation of the Eighth Amendment and noncompliance with the Americans with Disabilities Act and the Rehabilitation Act. After a trial in October 2018, the district court issued a 124-page Liability Opinion in March 2021 finding systemic constitutional violations. A bifurcated remedial trial was held in June 2022, during which the court considered some—but not all—of LSP’s interim improvements, and it refused to consider post-hearing upgrades, including the October 2022 adoption of electronic medical records. In November 2023, the court issued a 104-page Remedial Opinion, a Remedial Order, and a Final Judgment entering judgment for the plaintiffs. The Remedial Order appointed three special masters to develop remedial plans, required the state to bear the masters’ costs, and incorporated hundreds of specific directives for changes in medical care—yet it omitted any analysis under the PLRA’s needs-narrowness-intrusiveness requirements. The plaintiffs themselves conceded several PLRA violations.
  • The issues on appeal were (1) whether the Fifth Circuit had appellate jurisdiction under 28 U.S.C. § 1291 or § 1292(a)(1); (2) whether the district court’s Remedial Order violated the PLRA’s needs-narrowness-intrusiveness requirement and special-master provisions; (3) whether the district court applied the correct legal standard for ongoing deliberate indifference to serious medical needs—particularly in light of LSP’s substantial post-trial improvements.
  • The en banc majority held that jurisdiction existed under either § 1291 or § 1292(a)(1). Under § 1291, the court took the district court’s entry of “Final Judgment” at face value: it resolved the substantive issues of liability and remedy, described the plaintiffs as “prevailing parties,” and specified a detailed framework for injunctive relief. Applying a “pragmatic approach to the question of finality” endorsed by the Supreme Court in Brown Shoe Co. v. United States, the majority noted that the legally relevant elements of the Remedial Order were clear in light of the Remedial Opinion’s “granular explication of LSP’s constitutional shortcomings.” The court emphasized that this approach follows Morales v. Turman, which remains controlling Fifth Circuit precedent. Alternatively, the majority held the Remedial Order was an appealable interlocutory injunction under § 1292(a)(1), relying on Abbott v. Perez: “Much harm can occur before the final decision in the district court—lawful and important conduct may be barred, and unlawful and harmful conduct may be allowed to continue.”
  • The majority found the Remedial Order violated the PLRA in multiple respects. First, the order constituted “prospective relief” yet entirely failed to apply the PLRA’s cornerstone needs-narrowness-intrusiveness standard beyond a single perfunctory citation. Second, the order flouted the PLRA’s special-master provisions: it required three masters instead of the statutorily authorized “a” special master; it ignored the statutory selection process (each party submits up to five names, with mutual strikes); and it unlawfully required the state—rather than federal Judiciary appropriations—to pay the masters’ costs. The court wrote: “Congress disavowed the former procedures, so at odds with the structure of Federalism, precisely to maintain the possibility of prison reform while harmonizing it with judicial restraint and states’ legitimate institutional concerns. The district court’s multiple deviations from the PLRA inexcusably thrust the Defendants into sweeping judicial oversight contrary to the statute”.
  • The majority concluded the district court applied the wrong legal standard for ongoing subjective deliberate indifference and erroneously refused to consider LSP’s substantial improvements. After the Liability Opinion, LSP implemented electronic health records, doubled its physician staff, expanded specialty clinics from four to thirteen, overhauled sick-call procedures, upgraded emergency-care staffing, and earned reaccreditation from the American Correctional Association (satisfying 100% of mandatory standards). The district court acknowledged many of these changes as “robust” but repeatedly found them “not enough,” a standard the majority held was unmoored from the “extremely high” bar of Eighth Amendment deliberate indifference. Quoting Farmer v. Brennan, the majority emphasized that “prison officials … may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” The court also faulted the district court for refusing to update remedial evidence with LSP’s post-trial electronic records system: “Any court-appointed master will be striking at straw men, needlessly interfering with prison authorities’ duties, and running up bills for no constitutional remedial purpose.” On ADA/RA claims, the majority likewise found error, noting that “the ADA does not set out a standard of care for medical treatment” and “the ADA is not violated by a prison’s simply failing to attend to the medical needs of its disabled prisoners.” Summing up, the majority wrote: “The district court, in sum, was deliberately indifferent to both the evidentiary and legal framework that bound it.”
  • Judge Richman concurred in part and dissented in part. Judge Richman concurred in the majority’s PLRA analysis but dissented from its conclusions regarding the Eighth Amendment and ADA/RA. She wrote that “the record reflects what I consider to be deliberate indifference with regard to the serious medical needs of at least two inmates,” identified by the district court as Patient #4 and Patient #10. She stated it is “not clear whether two, a few, or several instances of deliberate indifference require prospective injunctive relief and if so, how such relief might be tailored” and would remand for further consideration of the scope of any injunctive relief under the PLRA’s narrowness requirements. On the ADA/RA, she noted the district court found failures to accommodate regarding disciplinary procedures, not medical care, and that evidence of violations exists; she therefore declined to join the majority on that point.
  • Judge Haynes dissented on jurisdiction, contending that the court had authority under neither § 1291 nor § 1292(a)(1). On § 1291, she contended that the Remedial Order “makes clear that the district court did not ‘intend[] to have nothing further to do'” and “expressly contemplates that the district court will conduct further action in the case”. Judge Haynes wrote that “[a] document labeled ‘Judgment’ does not close the case, even if it purports to do so, where the case is not actually finished.” On § 1292(a)(1), she observed that the Remedial Order “does not impose any substantive obligation upon Defendants regarding medical care” and is not an injunction but merely “a court directive advancing the litigation.” She concluded: “Because the Remedial Order is not an injunction, we lack appellate jurisdiction under § 1292(a)(1). … This appeal should be dismissed.”
  • Judge Higginson issued a separate dissent focusing on the majority’s jurisdictional analysis and its consequences, opening with the maxim: “Appeal gives the upper court a power of review, not one of intervention.” He characterized the majority as “erase[ing] multi-year, class action district court litigation that first confirmed and then sought to address proven, persistent unconstitutional medical care failures, which resulted in at least six preventable deaths at the Louisiana State Penitentiary at Angola.” Judge Higginson contended the majority “sidesteps Supreme Court case law, overlooks our own precedent, and splits with our sister circuits to construct a new, district-court-stripping rule of appellate intervention against institutional litigation.” Applying the Cohen collateral-order doctrine, he maintained the Remedial Order “fails all three” prongs because no conclusive remedial determination had been made and the issues were not effectively unreviewable. In a striking passage, he warned: “If that directive [to meet and confer] constitutes a final order bestowing jurisdiction on our en banc court to take over ongoing proceedings, then district courts have become obsolete.” He appended the district court’s catalog of harrowing examples of delayed or denied care—including an inmate found “collapsed on the floor, foaming at the mouth, with a temperature of 108.2 degrees” after an eight-hour wait for emergency treatment, with “[n]o attempt … made to cool the patient with ice.” He closed with a reminder from the Supreme Court: “Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration” (Brown v. Plata, 563 U.S. 493, 511 (2011)).

Unpublished decisions

• In the Matter of Marcus Jarrod Payne, 24-10393, appeal from N.D. Tex.
  • per curiam (Jones, Smith, Higginson) (no oral argument), bankruptcy
  • Dismissing as frivolous debtor’s appeal from denial of motion to vacate a permanent injunction.
  • Marcus Jarrod Payne sought leave to proceed in forma pauperis (IFP) on appeal from the district court’s order affirming the bankruptcy court’s denial of his motion to vacate a permanent injunction. An IFP motion on appeal operates as a challenge to the district court’s certification that the appeal is not taken in good faith.
  • The Fifth Circuit found that Payne’s motion and briefing failed to show the district court erred in finding his proposed appeal objectively frivolous.

• United States v. Enoch Buckley, III, 25-60420, appeal from S.D. Miss.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal, sentence reduction
  • Affirming denial of motion for sentence reduction.
  • Federal prisoner Enoch Buckley, III appealed the district court’s sua sponte denial of a sentence reduction under 18 U.S.C. § 3582(c)(2) and the denial of his motion to reconsider. Buckley argued that a lower guidelines range would apply if he were sentenced today under U.S.S.G. § 4A1.1, as amended by Part A of Amendment 821, and that the court’s decision undermined sentencing consistency among similarly situated defendants.
  • The district court’s rulings showed it considered the § 3553(a) factors—including the nature and circumstances of the offense, Buckley’s history and characteristics, and the need for deterrence. The court held that Buckley’s unwarranted-disparity argument was merely a disagreement with the district court’s analysis, which is insufficient to establish an abuse of discretion. His claim that future defendants would receive lesser sentences under Amendment 821 was characterized as “pure conjecture.”

• Collett v. Weyerhaeuser Co., 25-30554, appeal from E.D. La.
  • per curiam (King, Haynes, Ho) (no oral argument), personal torts, costs, Rule 54
  • Affirming Rule 54 costs award against plaintiffs.
  • This appeal concerned the taxation of costs to prevailing defendants of substantial financial resources where the plaintiffs were of limited means. After the district court granted summary judgment to Weyerhaeuser, Thornhill Forestry Service, and Lafayette Insurance Company in consolidated chemical-exposure cases, the clerk of court awarded $24,341.85 to Weyerhaeuser and $13,342.00 to Thornhill. The Colletts challenged those costs on the basis of indigency. The district court ordered supplemental briefing on the factors from Pacheco v. Mineta, 448 F.3d 783 (5th Cir. 2006), and ultimately denied reconsideration after analyzing those factors.
  • The court reiterated that under Fed. R. Civ. P. 54(d)(1), there is a “strong presumption” that prevailing parties receive costs. It held that a disparity in financial resources between the parties, standing alone, is not sufficient to overcome that presumption, citing Moore v. CITGO Refining & Chemicals Co. and Smith v. Chrysler Group. Because Joshua Collett did not argue on appeal that any other Pacheco factor weighed in his favor, the district court did not abuse its discretion.

• Mortel v. Nowicki, 25-50616, appeal from W.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), landlord-tenant, Fair Housing Act, sovereign citizen
  • Affirming dismissal of FHA claim for failure to prosecute and insufficient service.
  • Pro se plaintiff Donna Mortel sued her landlords, alleging they leased her an uninhabitable home, and claimed federal-question jurisdiction under the Fair Housing Act as well as diversity jurisdiction. Defendants moved to dismiss for lack of subject-matter jurisdiction and for insufficient service of process, arguing Mortel’s emailed service did not comply with Fed. R. Civ. P. 4. Mortel then refused to attend a court-ordered status conference, filing a “Notice of Non-Consent to Jurisdiction and Non-Appearance” rooted in sovereign-citizen legal theories. The district court dismissed the case without prejudice under Rule 12(b)(5) for insufficient service and under Rule 41(b) for failure to prosecute and comply with a court order.
  • The Fifth Circuit affirmed on all grounds. It rejected Mortel’s argument that the district court “lost authority to proceed” after she filed her notice of non-consent, noting she chose to file in federal court and thereby consented to its jurisdiction; the notion that a court loses jurisdiction by scheduling a status conference was called “patently frivolous.” The court also rejected Mortel’s theory of “service by acquiescence”—i.e., that defendants’ silence to her emailed affidavit constituted consent to email service—finding it legally baseless and non-compliant with Rule 4(e). Her citations to Texas Rule of Civil Procedure 106(b)(2), Federal Rule 4(f)(3), and the UCC were all unavailing.
  • The court denied defendants’ motion for sanctions under Fed. R. App. P. 38, noting that while the appeal was frivolous, Mortel is pro se and had not received a prior sanction warning. However, Mortel was warned that “filing further frivolous appeals or otherwise abusive filings may subject her to sanctions, including monetary sanctions and restrictions on access to federal courts”. Mortel’s motions to vacate and to strike were also denied.