Note: Included cases are from November 1, 2023, through November 31, 2023.
Sexual Harassment: Doe v. Burleson Cnty., Tex., 86 F.4th 172 (5th Cir. 2023). A county employee who worked as a criminal clerk in a county attorney’s office brought a Section 1983 action against the county and the county judge arising from the judge’s alleged sexual misconduct towards her. The federal district court vacated the trial date based on a finding that the judge lacked requisite final policymaking authority to hold the county liable, and subsequently, granted the county’s motion for judgment on the pleadings. The county employee appealed.
The court of appeals affirmed, holding that the judge lacked requisite final policymaking authority to hold the county liable under Section 1983 for his alleged sexual misconduct.
Fair Housing Act: Women’s Elevated Sober Living L.L.C. v. City of Plano, Tex., 86 F.4th 1108 (5th Cir. 2023). The operator of a sober-living home and home resident brought action against city, alleging the city’s refusal of the operator’s request for a zoning accommodation that would allow 17-20 residents in the home violated the Fair Housing Act (FHA). The city’s zoning ordinance allows only two types of residences in single family zones, either a “household” or a “household care facility,” and limits the household care facility to eight unrelated disabled individuals and two caretakers. The federal district court held that the city violated the FHA after concluding that the operator’s proposed accommodation was therapeutically necessary as compared to the offered alternative, considering the disabilities of the residents.
The court of appeals reversed and remanded, holding that the district erred by applying a standard accepting that “therapeutically beneficial treatment” constitutes necessity under the FHA, and the evidence was insufficient to support finding that requested accommodation was necessary to support a failure-to-accommodate claim.
Administrative Law: Port Arthur Cmty. Action Network v. Tex. Comm’n on Envtl. Quality, 86 F.4th 653 (5th Cir. 2023). A nonprofit environmental organization petitioned for judicial review of a determination by the Texas Commission on Environmental Quality (TCEQ), pursuant to the federal Clean Air Act and the Texas Clean Air Act, granting a Prevention of Significant Deterioration (PSD) permit to an applicant that planned to build a liquefied natural gas (LNG) plant and export terminal. The applicant interven
The court of appeals found that the organization’s member had Article III standing to challenge the permit decision. Additionally, the court determined that TCEQ failed to explain its departure from prior policy requiring PSD applicants to adhere to emissions limits in prior permits regardless of prior-permitted facilities’ operational status. The court determined that when a Texas state agency departs from its own administrative policy, or applies a policy inconsistently, Texas law requires it to adequately explain its reasons for doing so. In this case, the TCEQ declined to impose certain emissions limits on a new natural gas facility that it had recently imposed on another such facility. In doing so, it contravened its policy of adhering to previously imposed emissions limits, but it did not adequately explain why. It therefore acted arbitrarily and capriciously under Texas law. Accordingly, the court vacated TCEQ’s order granting the emissions permit at issue and remanded for proceedings consistent with the court’s opinion.
Qualified Immunity: Bailey v. Iles, No. 22-30509, 2023 WL 8062239 (5th Cir. Nov. 21, 2023).
An arrestee brought a Section 1983 action against a detective and sheriff, alleging false arrest under the Fourth Amendment, First Amendment retaliation, as well as state law claims for malicious prosecution and false arrest, arising from his arrest for a social media post he made stating that sheriff’s deputies would shoot COVID-19 “infected” persons “on sight.” Both sides moved for summary judgment. The federal district court granted the detective’s and the sheriff’s motion. The arrestee appealed.
The court of appeals reversed and remanded, holding that: (1) the social media post did not rise to the level of incitement outside of First Amendment protection; (2) the post was not a “true threat” that was unprotected by the First Amendment; (3) the detective did not have probable cause to make a warrantless arrest under Louisiana terrorizing statute; (4) the detective was not entitled to qualified immunity from the false arrest claim; (5) the arrestee satisfied elements for retaliation under the First Amendment; and (6) the detective was not entitled to qualified immunity from the arrestee’s First Amendment retaliation claim.
Qualified Immunity: Sligh v. City of Conroe, Tex., No. 22-40518, 2023 WL 8074256 (5th Cir. Nov. 21, 2023). After an arrestee with a mental health condition was injured by a prolonged bite from a city police officer’s police dog, the arrestee brought a Section 1983 action against the officer, county sheriff’s deputy, city, and county, alleging a violation of the Fourth Amendment, and asserting excessive-force claim against the officer, failure-to-intervene/bystander liability claim against the deputy, a Monell claim against the city, and claims against the city and the county for failure to accommodate her mental health condition under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The officer and deputy asserted qualified immunity. The federal district court dismissed the case for failure to state a claim. The arrestee appealed.
The Court of Appeals affirmed, finding that the: (1) the officer’s decision to deploy the police dog against the arrestee constituted an excessive use of force, thus violating a constitutional right; (2) the officer was entitled to qualified immunity from the excessive-force claim; (3) the deputy was entitled to qualified immunity for bystander liability; (4) the city was not liable for the Section 1983 claim based on inadequate policies; (5) the arrestee failed to state a Section 1983 claim against the city for failure to train; and (6) the arrestee failed to state a claim against the city and county for failure to accommodate her alleged mental health disability.