Take the Fifth

Designated for publication

• Searles v. City of Houston, 25-20383, appeal from S.D. Tex.
  • Higginson, J. (Richman, Higginson, Douglas) (no oral argument), qualified immunity
  • Affirming qualified immunity summary judgment dismissal of claim against officer on excessive force claim.
  • On April 27, 2022, Houston police pursued Jalen Randle to execute three felony warrants (aggravated assault, felon in possession of a firearm, and evading arrest). After an immobilization maneuver stopped the vehicle, Randle exited, then turned back to retrieve a closed bag from the car. Officer Shane Privette drew his firearm, began the command “Show me your hands,” and fired a single fatal shot before finishing the sentence—all within approximately two seconds. The bag was later confirmed to contain a firearm.
  • At issue on appeal was whether Privette’s use of deadly force violated the Fourth Amendment and whether he was entitled to qualified immunity.
  • The court resolved the appeal solely on the “clearly established law” prong of qualified immunity, finding that the “intensely factual circumstances” of this split-second encounter did not “meaningfully assist the growth of the law.” The court noted that the relevant question was whether, in April 2022, it was clearly established that an officer violates the Fourth Amendment by fatally shooting a suspect with active felony warrants who had just retrieved an unidentified object from a vehicle and was turning while an officer’s warning was still being issued.
  • The plaintiffs’ three principal cases—Baker v. Putnal, Cole v. Carson, and Poole v. City of Shreveport—were each factually distinguishable in critical respects, particularly because in this case it was undisputed that Randle held an object by his waist, the dispute was not whether he was armed.
  • The opinion closes with a pointed acknowledgment of the human toll: “With no instructions to stay in the vehicle, no opportunity to combat the preconception that he was a violent threat on the basis of warrants out for his arrest, and no time to comply with the command that registered in his ears simultaneously with the fatal shot that lodged in his neck, this tragic circumstance exposes that reality. But the strictures of qualified immunity and binding caselaw remain.”

• EEOC v. SkyWest Airlines, Inc., 25-10491, appeal from N.D. Tex.
  • Graves, J. (Wiener, Haynes, Graves) (oral argument), Title VII, employment discrimination, hearsay
  • Affirming judgment in favor employee on employment discrimination claims.
  • Sarah Budd, a Parts Clerk at SkyWest Airlines’ DFW location, was subjected to pervasive sexual harassment by coworkers, including comments about sex, rape “jokes,” and a supervisor who suggested selling her for prostitution. She suffered severe emotional distress, self-harm, and suicidal ideation. After she complained, the company’s investigation was cursory—the investigator randomly selected interviewees, failed to ask follow-up questions, and issued only written warnings. Budd ultimately took early retirement. The EEOC sued under Title VII, and a jury awarded compensatory and punitive damages.
  • At issue on appeal was (1) whether text messages were properly admitted under hearsay exceptions; (2) whether Title VII requires plaintiffs to mitigate emotional-distress damages (an issue of first impression in the Fifth Circuit); and (3) whether sufficient evidence supported punitive damages.
  • The court held that the text messages were admissible as present sense impressions and as statements of then-existing mental or emotional condition, noting Budd testified her texts were “instant, realtime” communications.
  • On the issue of first impression, the court held that a Title VII plaintiff has no duty to mitigate emotional-distress damages. Congress included a mitigation requirement for backpay but not for compensatory damages, and “[w]ithout more, we see no reason to graft an absent provision—already present elsewhere—onto a statute where Congress did not put it.” The court further found the common-law duty to mitigate emotional damages was not “well-established” when the compensatory-damages provision was adopted in 1991.
  • On punitive damages, the evidence showed supervisor Hansen “not only knew about, but actively participated in, serious harassment” despite having received sexual harassment training. The jury could also find SkyWest failed the good-faith defense given investigator Dehais’s “feeble attempt to uncover the truth,” including randomly selecting witnesses and failing to discipline Hansen or Widmer.

• Thorpe v. Weaver, 24-40472, appeal from E.D. Tex.
  • Graves, J. (Southwick, Graves, Wilson) (oral argument), qualified immunity
  • Affirming qualified immunity summary judgment on deliberate indifference claims.
  • On a hot Texas summer day in 2019, Darren Boykin fled from police on foot and was apprehended after a half-mile chase. He complained of being unable to breathe; Officer Hobbs attributed this to exercise exhaustion and turned up the air conditioning. Officer Weaver then drove Boykin toward jail. During the drive, Boykin lost consciousness and became unresponsive; Weaver drove past a hospital en route to the jail. Boykin was found pulseless on arrival and later died. He had sickle cell trait, an uncommon condition that made him vulnerable to sudden death from extreme exertion (ECAST).
  • At issue on appeal was whether Officers Hobbs, Scott, and Weaver were deliberately indifferent to Boykin’s serious medical needs under the Fourteenth Amendment, and whether qualified immunity applied.
  • As to Hobbs and Scott, the court found this was a “symptoms-only scenario” in which Hobbs mistook the signs of an ECAST event for exercise exhaustion, and Scott, who was on scene for about a minute and never interacted with Boykin, reasonably relied on his subordinates’ assessment. No reasonable jury could find actual knowledge of Boykin’s serious medical needs.
  • As to Weaver, the court acknowledged a reasonable jury could find she discovered Boykin’s deteriorating condition during transport, given that she looked back at him multiple times and the rear-compartment video shows obvious medical distress. However, the court granted qualified immunity because it was not clearly established in 2019 “that an officer who observes a serious threat to a detainee’s life during transport to jail must immediately secure aid.” The court noted that Cope v. Cogdill did not establish this duty until 2021, two years after Boykin’s death.

• The Juneau Group, L.L.C. v. Vendera Management Holdings, L.L.C., 25-20258, appeal from S.D. Tex.
  • King, J. (King, Higginson, Duncan) (oral argument withdrawn), standing, corporate entity, attorneys’ fees, sealed records, certification
  • Affirming dismissal of plaintiff dissolved LLC’s claims and denial of attorneys’ fees, denying certification to Louisiana Supreme Court, and vacating a sealing order and remanding.
  • The Juneau Group, a Louisiana LLC, alleged that its confidential bid strategy for onshore drilling assets was misappropriated by Vendera Resources with the help of a Bank of Oklahoma representative. However, the LLC’s sole member, Jacob Juneau, voluntarily dissolved the LLC by affidavit in April 2024—despite knowing of the claims since 2021—and did not file suit until July 2024. The defendants moved for judgment on the pleadings for lack of capacity. The district court also sua sponte sealed numerous filings concerning Juneau’s mental health without conducting the required balancing test.
  • At issue on appeal was (1) whether a voluntarily dissolved LLC has capacity to sue under Texas law; (2) whether retroactive reinstatement is available under Louisiana law for an LLC dissolved by affidavit when the member knew of the claims; (3) whether the district court erred in denying leave to file attorneys’ fees motions; and (4) whether the district court’s sua sponte sealing order was proper.
  • “Only a party that actually or legally exists may bring a lawsuit,” and the Juneau Group ceased to exist months before filing suit. Multiple Louisiana intermediate court decisions hold that retroactive reinstatement is unavailable when a member knew of claims before dissolution but chose the streamlined affidavit process over formal liquidation. The court rejected the argument that Texas law could revive a foreign LLC dissolved in its home state: to permit such a revival “would leave us with the corporate law equivalent of Schrodinger’s cat—a company that is both dead and alive at the same time.”
  • The court vacated the sealing order because the district court failed to mention the presumption in favor of public access, provided no reasons for sealing, and made no “detailed, clear, and specific” findings, contravening Van Waeyenberghe and Sealed Search Warrants.

• Rey v. LCMC Health Care Partners, L.L.C., 25-30661, appeal from E.D. La.
  • Duncan, J. (Duncan, Oldham, Wilson) (oral argument withdrawn), appellate jurisdiction, injunction, torts
  • Dismissing appeal of partial summary judgment, for lack of appellate jurisdiction
  • Five residents living near Children’s Hospital in New Orleans sued after the hospital relocated its helipad to the top of a new tower closer to their homes, alleging nuisance from helicopter noise and vibrations. They sought a mandatory injunction requiring relocation of the helipad plus damages. The district court granted partial summary judgment, holding that FAA regulations preempted an order to move the helipad but allowing general nuisance damage claims to proceed to trial. Plaintiffs took an interlocutory appeal before final judgment.
  • At issue on appeal was whether the Fifth Circuit had appellate jurisdiction under 28 U.S.C. § 1292(a)(1) over a partial summary judgment order that had the practical effect of refusing a permanent injunction.
  • The court held that because the district court’s order did not explicitly grant or deny an injunction (no motion for an injunction was before it), jurisdiction existed only if the Carson v. American Brands factors were met—i.e., that the order might have “serious, perhaps irreparable” consequences that could be “effectually challenged only by immediate appeal.” The court noted that § 1292(a)(1) “functions primarily” to allow interlocutory review of preliminary, not permanent, injunctions.
  • Plaintiffs never attempted to satisfy the Carson factors, which was “dispositive.” Their own actions belied irreparable harm: they never moved for a preliminary injunction, did not seek a separate final judgment, did not try to certify an interlocutory appeal under § 1292(b), and did not request expedited trial or appellate review.

• Lopez v. Ramirez, 25-40170, appeal from S.D. Tex.
  • per curiam (en banc) (oral argument withdrawn by original panel), Smith, J., dissenting from denial of en banc rehearing (joined by Duncan, J.), Ho, J., dissenting from denial of en banc rehearing; appellate jurisdiction, First Amendment, legislative immunity, qualified immunity
  • Denying en banc rehearing of unpublished May 28 panel opinion (Willett, Wilson, Douglas, per curiam) dismissing for lack of appellate jurisdiction appeal of order denying motion to dismiss and referring case to mediation. Seven judges voted for rehearing (Jones, Smith, Richman, Ho, Duncan, Engelhardt, Oldham); ten voted against (Chief Judge Elrod, Stewart, Southwick, Haynes, Graves, Higginson, Willett, Wilson, Douglas, Ramirez).
  • The underlying case involves allegations of First Amendment violations by local officials who assert absolute legislative immunity and qualified immunity. At issue on appeal was whether the Fifth Circuit had appellate jurisdiction under the collateral order doctrine where the district court deferred ruling on a qualified-immunity motion to dismiss by ordering “mandatory” mediation and denying all pending motions “without prejudice.” The panel had held it lacked appellate jurisdiction, treating the order as “a case-management deferral pending a discrete, nonbinding event . . . not a conclusive determination of anything.”
  • Judge Smith dissented from the denial of en banc rehearing, likening the case to the movie Groundhog Day, noting the defendants are “caught in a time loop” spanning three appeals, three remands, four motions to dismiss, and a third amended complaint—with still no ruling on qualified immunity. He argued the panel “flatly err[ed]” by refusing even to acknowledge the governing standard—that qualified immunity “must be resolved as early in the proceedings as possible”—a standard reiterated “eight times” in Wertenbroch v. Hardeman. Judge Smith warned the panel had “drawn a handy roadmap for district judges who are not fond of QI to delay—seemingly indefinitely—the ability of QI defendants to take interlocutory appeals.”
  • Judge Ho dissented, agreeing with Judge Smith and warning that mediation “can be deployed to delay finality in the district court, as a stratagem to avoid appellate review by pressuring the parties into settling the case.” He also candidly addressed his own prior judicial error in a related case: “There’s no shame in admitting error. There’s only shame in not admitting error,” citing Proverbs 12:1 (“[W]hoever hates correction is stupid.”).

• United States v. Texas (In-State Tuition), 25-10898, appeal from N.D. Tex.
  • Smith, J. (Smith, Willett, Ramirez) (oral argument), Ramirez, J., dissenting; intervention, preemption, Tenth Amendment, appellate jurisdiction
  • Affirming denial of intervention in suit challenging bar of postsecondary benefits to undocumented immigrants, and dismissing remaining appellate claims by nonparties for lack of appellate jurisdiction.
  • The United States sued Texas, alleging that two provisions of the Texas Education Code—§§ 54.051(m) and 54.052(a)—allowing undocumented immigrants who meet state residency requirements to pay in-state tuition were preempted by 8 U.S.C. § 1623(a), which bars states from conferring postsecondary education benefits on illegal aliens based on residence unless all U.S. citizens and nationals are eligible for the same benefit regardless of residency. Texas settled, and the district court approved a consent judgment within approximately six hours of the filing. Two advocacy groups (LUPE and SAT), Austin Community College, and a student sought to intervene post-judgment and vacate the consent judgment. The district court denied intervention as legally futile.
  • At issue on appeal was (1) whether intervention was futile because § 1623(a) preempts the Challenged Provisions; (2) whether various defenses to preemption—including a Tenth Amendment anti-commandeering argument—saved the intervenors’ claims; and (3) whether nonparties could challenge the consent judgment.
  • The majority held that intervention was futile because § 1623(a) expressly preempts the Challenged Provisions. Applying Bostock‘s but-for causation framework to § 1623(a)’s “on the basis of” language, the court found that continuous residency is a but-for cause of eligibility for in-state tuition under § 54.052(a)(3). The court rejected arguments that discounted tuition is not a “postsecondary education benefit” (it is a fiscal subsidy “about one-tenth the amount of out-of-state tuition”), that isolated exceptions for some out-of-state citizens nullify preemption, that the presumption against preemption applies (it does not when a statute contains an express preemption clause), that the Tenth Amendment is violated (§ 1623(a) “merely targets offending laws” and does not impose an affirmative command on states), and that severability could save § 54.052(a)(3)’s subsections.
  • Judge Ramirez dissented, and she would have remanded for the district court to evaluate Article III jurisdiction, noting the United States and Texas “agreed on [the] constitutional question” from the outset and entered a consent judgment within six hours—a situation bearing hallmarks of a “faux dispute” under Pool v. City of Houston. She also contended the district court’s futility analysis was incomplete because it applied a Rule 12(b)(6) rather than Rule 12(c) standard and did not address Appellants’ Tenth Amendment defense—that § 1623(a) is “simply no way to understand . . . as anything other than a direct command to the States” under Murphy v. NCAA. Judge Ramirez wrote: “Section 1623(a) does not confer any federal rights on private actors. Nor does it impose any federal restrictions on private actors . . . . [It] instead regulates only eligibility for postsecondary education benefits based on residency,” which is the province of the States.

Unpublished decisions

• Sneed v. Crown Equipment Corporation, 25-10562, appeal from N.D. Tex.
  • per curiam (Richman, Higginson, Douglas) (oral argument), expert witness, civil
  • Affirming exclusion of two of plaintiff’s experts and summary judgment dismissal of claim (without describing claim at issue).

• Sanders v. Gibson, et al., 25-10769, appeal from N.D. Tex.
  • per curiam (Davis, Wilson, Douglas) (no oral argument), prisoner suit, timeliness
  • Affirming dismissal of Texas state prisoner’s equal protection claims on basis of untimeliness.
  • Texas prisoner James Sanders filed successive post-judgment motions attempting to “stack” their tolling effect on the 30-day appeal deadline under Federal Rule of Appellate Procedure 4(a)(4)(A). The court held that a successive post-judgment motion on the same grounds does not restart the appeal clock, and because Sanders’s notice of appeal came 15 months late, the court lacked jurisdiction.

• United States v. Rodriguez, 25-11234, appeal from N.D. Tex.
  • per curiam (Haynes, Graves, Rodriguez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Ramos Iraheta, 25-11196, appeal from N.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Alvarado, 25-11294, appeal from N.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Xi v. BES Kessler Park Fund X11, L.L.C., 25-10194, appeal from N.D. Tex.
  • per curiam (Davis, Jones, Ho) (no oral argument), sec. 1981, Fair Housing Act, employment discrimination
  • Affirming dismissal of housing and employment discrimination claims.
  • Pro se plaintiff K’in Way Xi and others filed a joint civil rights suit alleging employment discrimination under Title VII and 42 U.S.C. § 1981 and housing discrimination under the Fair Housing Act. The district court dismissed under Rule 12(b)(6). On appeal, Xi argued the district court adopted the magistrate judge’s report prematurely, but the court found no harm because a de novo review was conducted on reconsideration. Xi, a non-attorney, could not pursue employment discrimination claims on behalf of other plaintiffs, and he failed to show he had his own employment-discrimination claim. His FHA claim also failed for lack of specific factual allegations of deliberate housing discrimination.

• Ester-Capers v. Walmart Inc., 25-30481, appeal from W.D. La.
  • per curiam (Duncan, Oldham, Wilson) (no oral argument), disability discrimination, Americans with Disabilities Act
  • Affirming summary judgment dismissal of disability discrimination claims.
  • Timothy Capers, a Walmart store manager who suffered a mild stroke and had diabetes, sued Walmart for disability discrimination and failure to accommodate under the ADA after being terminated. The court applied the McDonnell Douglas framework and held that Capers failed to establish a prima facie case because his residual stroke symptoms and diabetes did not “substantially limit a major life activity” under the ADA as amended by the ADAAA. Key evidence included that Capers never sought medical leave, continued to perform his store-manager duties, and later took a more physically demanding job. The court rejected the argument that a “regulatory presumption” of disability exists under the ADAAA, noting the Act eases but does not eliminate the burden of proving disability.

• United States v. Huerta-Garcia, 25-40353, appeal from S.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Lee, 25-30565, appeal from W.D. La.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal, search and seizure
  • Affirming convictions for possessing a firearm in furtherance of a drug trafficking offense and as a convicted felon, rejecting argument that the district court erred in denying his motion to suppress evidence from a traffic stop. The sole issue was whether the district court clearly erred in crediting the officer’s testimony that he observed Lee’s vehicle operating without taillights and while speeding. Under the highly deferential clear-error standard, particularly where the suppression ruling was based on live testimony, the court found no error.

• Sanchez Lozano v. Herrera Perez, 25-10184, appeal from N.D. Tex.
  • per curiam (Elrod, Clement, Haynes) (oral argument), international child custody
  • Affirming denial of petition for the return of petitioner’s son to Mexico under the Hague Convention on International Child Abduction. The district court found that the child had been wrongfully retained in the United States but that two Convention exceptions applied: the child was well-settled in his new environment (Article 12), and returning him to Mexico would expose him to a grave risk of harm (Article 13(b)).
  • The grave-risk finding rested on the father’s admitted ties to Mexican drug traffickers—from whom he regularly purchased cocaine—his eighteen-year cocaine addiction (used as recently as eight days before the hearing), his alcoholism, and his brother’s twelve-year disappearance linked to a cartel. The father did not contest the substance-abuse findings and never stated he would distance himself from drugs or the cartel if the child were returned. The court held that these factual findings were not clearly erroneous and affirmed the denial of the petition, without needing to reach the well-settled exception.

• Collins v. Chase Bank, N.A., 25-50807, appeal from W.D. Tex.
  • per curiam (Duncan, Oldham, Wilson) (no oral argument), civil
  • Affirming dismissal of plaintiff’s claims, without any description of claims or appellate issues.

• Lowry v. City of La Marque, Texas, et al., 25-40519, appeal from S.D. Tex.
  • per curiam (Duncan, Oldham, Wilson) (no oral argument), civil
  • Affirming dismissal of plaintiff’s claims, without any description of claims or appellate issues.

• United States v. Morales-Murguia, 25-50780, appeal from W.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal, sentencing
  • Affirming above-guidelines 24-month sentence for illegal reentry. The court found that the district court properly accounted for the guidelines range and justified the upward variance based on criminal history and § 3553(a) factors, and that the extent of the deviation was within bounds the Fifth Circuit has previously upheld.

• United States v. Espinoza-Garza, 25-40659, appeal from S.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• In re Okorie, 26-60217, appeal from S.D. Miss.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), bankruptcy
  • Affirming denial of debtor’s motion for leave from the bankruptcy court to file Barton motions (i.e., lawsuits against the bankruptcy trustee) and to file the trustee’s surety bond under seal.

• Salinas v. Ramirez, 25-40173, c/w 25-40301, appeal from S.D. Tex.
  • per curiam (Duncan, Oldham, Wilson) (no oral argument), sec. 1983
  • Affirming dismissal of plaintiff’s § 1983 complaint against Duval County Sheriff Romeo Ramirez, alleging constitutional violations from an unauthorized entry onto his property and delayed release from jail after posting bail. The court found that Salinas abandoned his property-entry claim by failing to identify any error in the district court’s analysis, and that he failed to show a genuine issue of material fact on his due-process claim. The court also lacked jurisdiction over orders Salinas did not appeal to the district court and declined to consider claims raised for the first time on appeal.

• United States v. Goodwill, 25-30469, appeal from W.D. La.
  • per curiam (Duncan, Oldham, Wilson) (oral argument withdrawn), criminal
  • Affirming revocation of supervised release.
  • Robert Goodwill, Jr., convicted of attempted possession of child pornography, appealed the revocation of his supervised release and the resulting twelve-month sentence. He argued that a kitchen knife kept under his pillow was not a “dangerous weapon” under his Standard Condition 10 and that his sentence was plainly unreasonable.
  • On revocation, the court declined to decide whether the knife was a dangerous weapon because any error was harmless—Goodwill did not contest three independent violations: failure to submit monthly reports, possession of unauthorized electronic devices, and deliberate removal of computer monitoring software. On the sentence, the court found no procedural or substantive error; the three-month upward variance from the guidelines was justified by the nature of Goodwill’s original crime (internet-based child pornography) and his repeated flouting of internet-monitoring conditions.

• United States v. Quevedo-Escobar, 25-50691, appeal from W.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), criminal, sentencing
  • Affirming 36-month sentence for illegal reentry.

• Law Office of Joseph Onwuteaka, P.C. v. Constant Contact, Inc., 25-20565, appeal from S.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), personal jurisdiction, civil
  • Affirming dismissal of commercial claims for lack of personal jurisdiction.
  • A Texas law office sued Constant Contact (a Delaware/Massachusetts citizen) for allegedly failing to perform email marketing services. The district court dismissed for lack of personal jurisdiction. On appeal, the court found no general jurisdiction because the complaint contained only a conclusory assertion of “continuous and systematic” contacts with Texas. Specific jurisdiction also failed because a contract with a Texas resident alone cannot establish minimum contacts, and the law office pleaded almost no facts about prior negotiations, the contract’s terms, or the parties’ course of dealing. The claim that a tort was committed “in Texas” was likewise insufficient absent other affiliating circumstances.

• Villarreal v. VitalCore, et al., 25-60415, appeal from S.D. Tex.
  • Higginson, J. (Richman, Higginson, Douglas) (no oral argument), prisoner suit
  • Affirming denial of pretrial detainee’s suit for failure to exhaust administrative remedies.
  • Monnie Villarreal, detained at a county jail for a probation violation stemming from a state conviction, filed a § 1983 suit alleging mismanagement of his diabetes medication and a retaliatory assault by another inmate. The district court granted summary judgment for defendants based on failure to exhaust administrative remedies under the PLRA.
  • Villarreal argued he was a “pretrial detainee” not required to use the MDOC Administrative Remedy Program (ARP). The court disagreed, holding that the PLRA’s definition of “prisoner” encompasses anyone “incarcerated or detained” who is “accused of” violating “terms and conditions of parole, probation, pretrial release, or diversionary program.” Villarreal was detained for violating post-release supervision conditions and was thus a “prisoner” subject to the PLRA at the time of filing. The JCADC handbook explicitly provided that inmates sentenced to MDOC had access to the ARP, and Villarreal’s use of only the JCADC kiosk inmate-request system was insufficient to exhaust.

• Mateen v. City of Gulfport, et al., 25-60602, appeal from S.D. Miss.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), qualified immunity
  • Affirming qualified immunity summary judgment dismissal of claims arising from fatal police shooting.
  • Katrina Mateen, proceeding pro se, appealed the grant of summary judgment on qualified-immunity grounds to Officer Kenneth Nassar for the fatal shooting of her fifteen-year-old son, Jaheim McMillan. Officers responded to a 911 call about occupants of a vehicle brandishing firearms; McMillan fled the vehicle in front of an occupied store holding a stolen, loaded handgun, ignored commands to stop and drop the weapon, and turned to face the officer.
  • The court assumed without deciding that the use of force may have violated the Fourth Amendment but held that Mateen failed to identify clearly established law that Officer Nassar violated. Citing Graham and Garner, the court noted the Supreme Court has stressed those cases do not create clearly established law outside “an obvious case,” and the facts here did not qualify. Cole v. Carson (involving a suicidal teenager) was factually inapposite.

• Rivera-Carpio v. Blanche, 26-60036, petition for review of BIA order
  • per curiam (Davis, Jones, Ho) (no oral argument), immigration
  • Denying Salvadoran citizen’s petition for review of BIA affirmance of the IJ’s denial of asylum, withholding of removal, and Convention Against Torture (CAT) protection. The court found substantial evidence supported the agency’s conclusion that the gang Rivera-Carpio feared lacked a current inclination to persecute him—his family members in El Salvador had not been threatened after he left, and the gang stopped looking for him once it learned he had fled. On CAT, the harms he experienced did not rise to the level of persecution (and therefore not torture), the Salvadoran government’s inability to catch perpetrators did not amount to acquiescence, and generalized country-conditions evidence was insufficient.

• United States v. Castro-Medina, 25-50618, appeal from W.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal, sentencing
  • Affirming 78-month above-guidelines sentence for illegal reentry. The court found the district court articulated specific, individualized reasons tied to § 3553(a) factors and the defendant’s history of removals and criminal conduct. No plain error or substantive unreasonableness was shown.

• United States v. Bello, 26-40126, appeal from E.D. Tex.
  • per curiam (Elrod, Jones, Higginson) (no oral argument), criminal
  • Dismissing appeal in part for lack of appellate jurisdiction.
  • Olamide Bello was convicted by a jury of conspiracy to commit wire fraud and money laundering and sentenced to 293 months’ imprisonment plus $3,567,903 in restitution. This appeal concerned three post-judgment orders, not the judgment itself. The court held it lacked jurisdiction over the denial of Bello’s “motion for relief based on perjury and newly discovered evidence” because the motion was procedurally improper—a § 2255 petition is the only avenue to collaterally attack a conviction. The appeal of the denial of Bello’s Rule 10(c) motion to settle the record was moot because the sentencing transcript had since been provided. The appeal of the denial of Bello’s motion to reopen the time for filing a notice of appeal was ordered consolidated with his separate appeal of the amended judgment (No. 25-40772).

• George v. SI Group, Inc., et al., 25-40286, appeal from S.D. Tex.
  • per curiam (Haynes, Higginson, Ho) (oral argument), Higginson, J, concurring in judgment only (w/o separate op.); premises liability, products liability
  • Affirming summary judgment dismissal of premises and products liability claims.
  • James George suffered severe burns when a tanker trailer full of 200-degree water tipped over while parked on gravel, spilling water into the truck cab where he sat. He brought premises-liability claims against SI Group (the premises owner) and products-liability claims against Bulk Solutions (the trailer distributor) and Brenner Tank Services (a trailer designer).
  • Premises liability (SI Group): The court found no evidence that SI Group knew or should have known of an unsafe ground condition before the accident. Post-accident investigative reports were not evidence of pre-accident knowledge, and overheard employee conversations were inadmissible hearsay and speculative. The exclusion of George’s expert on SI Group’s knowledge was not an abuse of discretion because the expert merely evaluated evidence without relying on specialized expertise. George’s “Type 2” premises-defect claim also failed because SI Group did not retain or exercise control over Veolia’s safety practices.
  • Products liability (Bulk and Brenner): George forfeited his challenge to Bulk’s immunity as a non-manufacturing seller by failing to brief it. On Brenner’s failure-to-warn claim, the court held there was no duty to warn because the risk of dropping a trailer on gravel without stabilizing mats would be obvious to foreseeable users—commercial motor vehicle drivers who are specially trained and licensed. On the design-defect claim, the court applied Texas’s risk-utility analysis and concluded that all factors weighed against George; the trailer was not unreasonably dangerous as a matter of law.

• United States v. Martinez, 25-50546, appeal from W.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal, guilty plea
  • Affirming denial of motion to withdraw guilty plea.
  • Mark Martinez pleaded guilty to multiple counts involving sexual abuse of a child, receipt/distribution/possession of child pornography, and sex-offender notification offenses, then moved to withdraw his plea. The district court denied the motion without a hearing. Reviewing for abuse of discretion under the Carr factors, the Fifth Circuit found no error in either the denial of the motion or the decision to deny it without an evidentiary hearing.