Take the Fifth

Designated for publication

• Wertenbroch v. Hardeman, 25-40616, appeal from E.D. Tex.
  • Clement, J. (Clement, Southwick, Engelhardt) (no oral argument), qualified immunity, appellate jurisdiction
  • Vacating judgment denying dismissal and failing to mention qualified immunity defense, and remanding for further proceedings.
  • Plaintiffs Patricia Anna Wertenbroch and Kulwant Singh Atwal sued Clint Hardeman, the City Manager of Pittsburg, Texas, under 42 U.S.C. § 1983, alleging he racially discriminated against them in violation of the Fourteenth Amendment’s Equal Protection Clause by failing to investigate crimes on their properties, listing their properties on the market without consent, and unequally enforcing the city code. Hardeman moved to dismiss under Rule 12(b)(6), raising, among other grounds, qualified immunity. A magistrate judge recommended denial in a brief report that never mentioned qualified immunity, finding only that Plaintiffs’ allegations—”while undoubtedly thin”—stated a plausible equal protection claim. The district court adopted the report over Hardeman’s objections without ever addressing qualified immunity.
  • At issue on appeal was whether an appellate court has jurisdiction under the collateral-order doctrine to review a district court order that denies a Rule 12(b)(6) motion on the merits but never expressly addresses or resolves a defendant’s qualified immunity defense.
  • The Fifth Circuit held that when a district court allows litigation to proceed without adjudicating a qualified immunity defense at the earliest possible stage, the resulting order is immediately appealable under the collateral-order doctrine, even if the district court does not expressly address qualified immunity.
  • The court acknowledged that prior Fifth Circuit precedent drew a line between an express refusal to rule on qualified immunity—which is immediately appealable under Helton v. Clements, 787 F.2d 1016 (5th Cir. 1986)—and situations where the defense is merely “under advisement” or awaiting an amended complaint, which are not. This case fell into neither camp: the district court did not expressly refuse to rule, but neither did it signal that a ruling was forthcoming—”there is silence.”
  • Drawing on Carswell v. Camp, 54 F.4th 307 (5th Cir. 2022), the court reasoned that because Hardeman raised qualified immunity in his motion to dismiss—the “earliest possible stage in litigation”—the district court was required to rule on it. By allowing the case to proceed without doing so, the order had “the same denial effect as the refusals in Helton and Carswell, even though qualified immunity was never expressly decided here.” The court thus treated the order as “an implicit denial of qualified immunity that is immediately appealable.”
  • The panel buttressed its holding with the Supreme Court’s animating policy: “‘Unless the plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.'” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). It also noted alignment with the Third and Tenth Circuits, which have recognized appellate jurisdiction over comparable implicit denials.

Unpublished decisions

• United States v. Kimmons, 25-30371, appeal from W.D. La.
  • per curiam (Clement, Southwick, Engelhardt) (oral argument withdrawn), criminal, search and seizure, sentencing
  • Affirming conviction and upholding denial of motion to suppress, but vacating career-offender-enhanced sentence and remanding for resentencing.
  • At issue on appeal were (1) whether an officer’s pat-down of the defendant during a traffic stop violated the Fourth Amendment; and (2) whether the district court erred in applying the career-offender sentencing enhancement under U.S.S.G. § 4B1.1(a) based on prior marijuana offenses that, following the 2018 Agriculture Improvement Act’s removal of hemp from the CSA’s definition of marijuana, no longer qualify as “controlled substance offenses.”
  • The court affirmed the denial of the motion to suppress, finding that the totality of the circumstances—including information that the defendant was a large-scale methamphetamine dealer, possibly armed, with prior felony convictions, stopped at night in a deserted area while acting nervously—gave the officer reasonable suspicion to conduct a protective pat-down. The court vacated the sentence and remanded for resentencing because the defendant’s prior Louisiana marijuana convictions are not “controlled substance offenses” under United States v. Minor, 121 F.4th 1085 (5th Cir. 2024), and the career-offender enhancement was therefore erroneously applied.

• United States v. Hardy, 25-11239, appeal from N.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Campbell v. Harrison County Circuit Court, 25-60328, appeal from S.D. Miss.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), prisoner suit, Sixth Amendment. prosecutorial immunity, judicial immunity, amendment
  • Affirming dismissal of Mississippi state prisoner’s § 1983 claims.
  • At issue on appeal were whether the district court erred in dismissing a pro se prisoner’s 42 U.S.C. § 1983 claims—alleging Second, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment violations arising from a probation revocation hearing—on the basis of prosecutorial immunity, judicial immunity, and failure to state a claim; and whether leave to amend to add the presiding judge as a defendant was properly denied as futile.
  • The court held that Campbell had no Sixth Amendment right to court-appointed counsel at a revocation hearing, so his former attorney’s failure to appear did not violate the Constitution. The Prosecutor Defendants were shielded by absolute prosecutorial immunity, and the proposed addition of the presiding judge was futile because she is protected by absolute judicial immunity. The court did not reach the district court’s alternative Heck v. Humphrey or Younger abstention holdings.

• Esteves v. Lowe’s Home Centers, L.L.C., 25-40663, appeal from E.D. Tex.
  • per curiam (King, Higginson, Duncan) (oral argument withdrawn), personal tort
  • Affirming summary judgment for defendant on premises liability claim.
  • At issue on appeal was whether the plaintiffs raised a genuine issue of material fact regarding the defendant retailer’s constructive knowledge of a defective garden cart under Texas’s “time-notice rule” for premises liability.
  • Under Texas law, constructive knowledge requires temporal evidence—proof of how long a hazard existed—not mere proximity of an employee to the hazard. The court found the plaintiffs offered only speculation about how long the cart was missing its wheel before it tipped over, and Lowe’s internal inspection policy alone could not impute constructive knowledge absent evidence a Loader actually inspected the cart or evidence of the duration of the defect. Because the plaintiffs failed to provide sufficient temporal evidence, a necessary element of their claim, summary judgment was proper.

• SEC v. Barton, 25-11043, appeal from N.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), appellate jurisdiction, receivership, sanctions
  • Dismissing for lack of appellate jurisdiction appeal of order lifting a litigation stay that had been imposed in a receivership.
  • At issue was whether the Fifth Circuit has appellate jurisdiction over a district court order that lifted a litigation stay (imposed as part of a receivership order) to permit a bankruptcy court to dismiss Chapter 11 cases involving entities controlled by the defendant. Barton claimed jurisdiction under 28 U.S.C. § 1292(a)(1) (injunction modification), § 1292(a)(2) (receivership wind-up), and the collateral-order doctrine.
  • The court held that (1) § 1292(a)(1) does not apply because the stay was part of a receivership order, not standalone injunctive relief demanded in the complaint, and § 1292(a)(2)—the more specific receivership provision—governs; (2) § 1292(a)(2) does not apply because the order was merely an administrative receivership action, not a refusal to wind up or take steps to accomplish the receivership’s purposes; and (3) the collateral-order doctrine does not extend beyond sale or distribution orders in this context. The court also directed Barton to show cause by June 16, 2026, why sanctions should not be imposed for a potentially frivolous appeal, noting his pattern of approximately thirteen appeals in three years that have drained receivership funds and court resources.