Angie Waller v. City of Fort Worth Texas, e , 922 F.3d 590 ( 2019 )


Menu:
  •      Case: 18-10561    Document: 00514928890     Page: 1   Date Filed: 04/24/2019
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT    United States Court of Appeals
    Fifth Circuit
    FILED
    April 24, 2019
    No. 18-10561
    Lyle W. Cayce
    Clerk
    ANGIE WALLER, Individually and in her Capacity as Independent
    Executrix of the Estate of Kathleen Margaret Waller; CHRIS WALLER,
    Plaintiffs - Appellees
    TERRY WAYNE SPRINGER; GAYLA WYNELL KIMBROUGH,
    Intervenor Plaintiffs - Appellees
    v.
    BENJAMIN B. HANLON; RICHARD HOEPPNER; B. S. HARDIN,
    Defendants - Appellants
    Appeals from the United States District Court
    for the Northern District of Texas
    Before KING, SMITH, and WILLETT, Circuit Judges.
    KING, Circuit Judge:
    Fort Worth Police Officer Richard Hoeppner fatally shot 72-year old
    Jerry Waller in Waller’s own garage. Hoeppner insists he did so only out of
    reasonable fear for his life. Seeking recompense for Waller’s death, Waller’s
    survivors came to the district court alleging that forensic evidence
    substantially undermines Hoeppner’s version of events. The district court
    concluded that the plaintiffs pleaded enough facts to plausibly allege that
    Case: 18-10561     Document: 00514928890     Page: 2   Date Filed: 04/24/2019
    No. 18-10561
    Hoeppner did not reasonably fear for his safety when he shot Waller. It
    likewise concluded they pleaded enough facts to allege that defendant police
    officers Benjamin Hanlon and B. S. Hardin conspired with Hoeppner to veil
    the true circumstances of Waller’s death. It accordingly denied the defendants’
    motions for a judgment on the pleadings.
    The defendants appeal that ruling. Exercising appellate jurisdiction
    under the collateral-order doctrine, we AFFIRM in part and REVERSE in part.
    We agree with the district court that the plaintiffs plausibly allege Waller was
    unarmed—and thus posed no reasonably perceivable threat—when Hoeppner
    killed him. But we conclude the plaintiffs’ claims alleging the defendants
    denied them access to the courts are currently unripe. We also conclude the
    plaintiffs do not have standing to seek declaratory (as opposed to retrospective)
    relief for the past injury to Waller.
    I.
    A.
    We draw the following facts from the plaintiffs’ pleadings and the
    attachments thereto.
    Defendants Richard Hoeppner and Benjamin Hanlon, both Fort Worth
    police officers on patrol during the early morning of May 28, 2013, were
    dispatched to 409 Havenwood Lane North to investigate a residential burglary
    alarm. Hoeppner and Hanlon arrived in separate vehicles and parked down
    the street from 409 Havenwood Lane North, so they could approach
    surreptitiously. The officers proceeded on foot to 404 Havenwood Lane North,
    erroneously believing it was 409 Havenwood Lane North, which was across the
    street. The officers looked around the outside of the house and noticed the
    garage door was open. Hanlon then went to knock on the front door while
    Hoeppner stayed by the open garage. Meanwhile, the officers’ flashlights
    roused Jerry and Kathleen Waller, the residents of 404 Havenwood Lane
    2
    Case: 18-10561         Document: 00514928890         Page: 3     Date Filed: 04/24/2019
    No. 18-10561
    North. Jerry Waller attributed the lights to his car alarm, so he went out to
    the garage to investigate.
    What happened next is the subject of dispute. Hoeppner and Hanlon, the
    only surviving witnesses to the encounter, recounted the following version of
    events in a series of statements to investigators. 1 Holding a small gun, Waller
    entered the garage through a door that led in from the house. Hoeppner shined
    his 600-lumen flashlight in Waller’s eyes specifically to conceal himself, drew
    his service weapon, and repeatedly ordered Waller to drop the gun. Hoeppner
    did not identify himself as a police officer, but Hanlon, upon hearing Hoeppner
    shouting in the garage, rushed to the garage while yelling “Fort Worth PD.”
    Waller ignored Hoeppner’s repeated commands to drop his gun. Instead,
    Waller became combative and demanded that Hoeppner get the light out of his
    eyes. Waller eventually did put the gun down on the back of a car parked in
    the garage. Hoeppner moved toward the gun, but Waller suddenly lunged for
    the gun, retrieved it, and pointed it at Hoeppner. Fearing for his life, Hoeppner
    shot Waller five or six times, and Waller fell forward on top of the gun. Hanlon
    did not fire his weapon.
    The plaintiffs accuse Hoeppner and Hanlon of fabricating this story to
    cover up an unjustified use of force. They allege that physical evidence shows
    that Waller could not have been holding a gun when he was shot. Rather, they
    say the autopsy report and blood-splatter patterns suggest that Waller was
    holding both his hands over his face when he was shot.
    The autopsy report, which the plaintiffs attach to their pleadings, shows
    that one of Hoeppner’s bullets went through Waller’s left thumb and struck
    several of his fingers on his left hand. The plaintiffs maintain that the bullet’s
    path through Waller’s fingers and the blood on the palm of his left hand suggest
    1   The plaintiffs attach these statements to their pleadings but disavow their accuracy.
    3
    Case: 18-10561     Document: 00514928890     Page: 4   Date Filed: 04/24/2019
    No. 18-10561
    that he could not have been gripping a gun with his left hand when it was
    struck. Further, they say that Waller’s gun was not damaged in the shooting
    and crime-scene photographs do not reveal any blood on the gun’s handle,
    making it unlikely it was in Waller’s left hand when he was struck.
    Likewise, Waller had blood splatter on the palm of his right hand, which
    the plaintiffs cite as evidence that when he was shot, he was not holding
    anything in his right hand either. Waller also had blood splatter around his
    left ear, which, the plaintiffs posit, means he must have been holding his left
    hand above his face when the bullet hit it, likely because he was trying to shield
    the light from his eyes. And if the blood splatter on his right hand also came
    from the wound on his left hand, then his right hand must have also been at
    eye level when he was shot.
    The events that allegedly followed further animate the plaintiffs’
    suspicions. They allege that defendant B. S. Hardin, another Fort Worth
    officer, arrived at the scene a few minutes after the shooting and conspired
    with Hoeppner and Hanlon to cover up Hoeppner’s culpability. Hardin told
    investigators that he went to administer aid to Waller when he arrived on
    scene because he had prior experience as an EMT. Hardin said that Hoeppner
    told him there was a gun underneath Waller, so he lifted Waller’s body and
    laid the gun off to the side before administering aid in case Waller could still
    fire the weapon. It was not until after removing the gun, Hardin said, that he
    discovered Waller did not have a pulse.
    The plaintiffs allege that Hardin lied about finding a gun under Waller’s
    body. The plaintiffs assert that Hardin had no legitimate reason to move the
    gun from underneath Waller to about a foot from Waller’s head, where it is
    later depicted in crime-scene photographs. They also point to inconsistent
    statements about the positioning of Waller’s arms as evidence that Hardin
    fabricated his story. Hardin told investigators that Waller’s arms were tucked
    4
    Case: 18-10561        Document: 00514928890           Page: 5     Date Filed: 04/24/2019
    No. 18-10561
    underneath his chest when Hardin found him. But Kathleen Waller, who,
    according to Hardin, entered the garage around the same time as he arrived
    (and thus before he removed the gun), recalled that Jerry Waller’s hands were
    at his sides in a “pushup”-like position. Subsequent crime-scene photographs
    show Waller with his left arm stretched perpendicular to his body and his right
    arm laying parallel at his side.
    The plaintiffs additionally allege several procedural irregularities in the
    early stages of the investigation, which they contend to be further evidence of
    a conspiracy. They allege that the defendants took more than five hours to call
    the medical examiner in violation of a state law that requires police officers to
    report an unnatural death to the medical examiner “immediately” upon its
    discovery. 2 Tex. Code Crim. Proc. Ann. art. 49.25 § 7(a). They likewise argue
    that one of the officers violated state law by moving Waller’s body without
    permission from the medical examiner. See 
    id. § 8.
    And they allege someone
    stepped in Waller’s blood and tracked it throughout the garage, further
    contaminating the crime scene.
    B.
    Waller’s survivors 3 brought 42 U.S.C. § 1983 claims against Hoeppner,
    Hanlon, Hardin, the City of Fort Worth, and several officers involved in the
    investigation into Waller’s death. As relevant to this appeal, they alleged that
    Hoeppner used excessive force against Waller in violation of his Fourth and
    Fourteenth Amendment rights to be free from unreasonable seizures. They
    also claimed that Hoeppner, Hanlon, and Hardin conspired to cover up
    2  In contrast, the plaintiffs allege that a police-union attorney was “on the scene within
    minutes” of Waller’s death.
    3 The original plaintiffs consist of Waller’s two children, one of whom is acting in a
    dual capacity as the executrix of Kathleen Waller’s estate, who died while this case was
    pending below. Waller’s two additional children joined as intervenors. We refer to the
    plaintiffs and intervenors collectively as the “plaintiffs” throughout this opinion.
    5
    Case: 18-10561       Document: 00514928890         Page: 6     Date Filed: 04/24/2019
    No. 18-10561
    Hoeppner’s use of excessive force in violation of their constitutional right to
    access the courts. And they sought declaratory relief for violations of analogous
    rights under the Texas Constitution.
    Hoeppner, Hanlon, and Hardin each answered with a qualified-
    immunity defense to the § 1983 claims. On the district court’s order, the
    plaintiffs then filed a reply addressing qualified immunity. Hoeppner, Hanlon,
    and Hardin subsequently moved for judgment on the pleadings, arguing that
    the plaintiffs’ pleadings were insufficient to overcome their qualified-immunity
    defenses. The district court determined that the defendants were not entitled
    to qualified immunity based on the plaintiffs’ well-pleaded allegations and thus
    denied the defendants’ motions in relevant part. 4 Specifically, it concluded that
    the plaintiffs’ allegations, taken as true, established that Waller was not
    holding a weapon when Hoeppner shot him. Thus, it ruled that the plaintiffs
    plausibly alleged Hoeppner did not reasonably perceive a threat when he shot
    Waller in violation of clearly established law. The district court also concluded
    that the plaintiffs plausibly alleged the defendants conspired to tamper with
    the crime scene and give false statements in a manner that could prove fatally
    detrimental to the plaintiffs’ claims against Hoeppner. These acts, the district
    court explained, violated the plaintiffs’ clearly established rights to access the
    courts. Lastly, the district court ruled that state law authorized the plaintiffs
    to pursue declaratory relief for violations of the Texas Constitution. The
    defendants appeal these rulings.
    II.
    Before turning to the merits of the defendants’ appeal, we must assure
    ourselves of our appellate jurisdiction. Congress has granted us jurisdiction
    The district court granted the motions as to several claims not at issue in this appeal
    4
    and granted Officer A. Chambers’s motion in its entirety.
    6
    Case: 18-10561     Document: 00514928890      Page: 7    Date Filed: 04/24/2019
    No. 18-10561
    over “final decisions of the district courts” within this circuit. 28 U.S.C. § 1291.
    Under the collateral-order doctrine, the Supreme Court has interpreted “final
    decisions” to include certain decisions that “finally determine claims of right
    separable from, and collateral to, rights asserted in the action, too important
    to be denied review and too independent of the cause itself to require that
    appellate consideration be deferred until the whole case is adjudicated.” Cohen
    v. Beneficial Indus. Loan Corp., 
    337 U.S. 541
    , 546 (1949). An order denying an
    officer’s qualified-immunity defense is generally a collateral order subject to
    immediate appeal. See Hinojosa v. Livingston, 
    807 F.3d 657
    , 663 (5th Cir.
    2015).
    Despite the general rule, the plaintiffs argue that we do not have
    jurisdiction to review the district court’s order denying the defendants’ motions
    for a judgment on the pleadings because, in denying those motions, the district
    court determined that “genuine issues of material fact” precluded dismissal.
    This argument confuses the procedural posture of this case. In hearing an
    appeal from an order denying summary judgment on qualified-immunity
    grounds, we have jurisdiction to “review the materiality of any factual
    disputes, but not their genuineness.” Hogan v. Cunningham, 
    722 F.3d 725
    , 731
    (5th Cir. 2013) (quoting Juarez v. Aguilar, 
    666 F.3d 325
    , 331 (5th Cir. 2011)).
    But this appeal comes to us on the defendants’ motions for judgment on the
    pleadings, not summary judgment. In reviewing the defendants’ motions for
    judgment on the pleadings, the district court did not (and could not) consider
    whether the evidence created a genuine factual dispute. See Bosarge v. Miss.
    Bureau of Narcotics, 
    796 F.3d 435
    , 439 (5th Cir. 2015). We possess—and
    routinely exercise—jurisdiction to review a district court’s determination at
    the pleadings stage that a plaintiff has alleged sufficient facts to overcome a
    qualified-immunity defense. 
    Id. at 438-39;
    see also, e.g., Shaw v. Villanueva,
    
    918 F.3d 414
    , 416 (5th Cir. 2019); Doe v. Robertson, 
    751 F.3d 383
    , 386-87 (5th
    7
    Case: 18-10561     Document: 00514928890      Page: 8   Date Filed: 04/24/2019
    No. 18-10561
    Cir. 2014). Accordingly, we have jurisdiction to review the district court’s
    rulings on the defendants’ qualified-immunity defenses to the plaintiffs’ § 1983
    claims.
    Whether we have jurisdiction to review the portion of the district court’s
    order addressing the plaintiffs’ state-law declaratory-judgment claims is a
    separate question. As the plaintiffs point out, the defendants do not assert
    immunity from these claims—nor could they because qualified immunity
    applies only to claims for money damages. See Morgan v. Swanson, 
    659 F.3d 359
    , 365 n.3 (5th Cir. 2011) (en banc). We thus agree with the plaintiffs that,
    normally, the denial of a motion to dismiss a declaratory-judgment claim is not
    immediately appealable. But we may exercise pendent jurisdiction over
    interlocutory orders when, inter alia, “addressing the pendent claim will
    further the purpose of officer-immunities by helping the officer avoid trial” or
    “the claims involve precisely the same facts and elements.” Escobar v. Montee,
    
    895 F.3d 387
    , 392-93 (5th Cir. 2018) (footnotes omitted). Both situations are
    present here. It would undermine the purpose of qualified immunity if the
    defendants here were subject to trial on the declaratory-judgment claims
    despite immunity from the § 1983 claims. Cf. Melton v. Phillips, 
    875 F.3d 256
    ,
    265 n.9 (5th Cir. 2017) (en banc) (“[Q]ualified immunity is an immunity from
    suit that ‘is effectively lost if a case is erroneously permitted to go to trial.’”
    (quoting Pearson v. Callahan, 
    555 U.S. 223
    , 231 (2009))). Further, the
    plaintiffs identify no differences between the facts or elements needed to prove
    their declaratory-judgment claims and those needed to prove their § 1983
    claims. Accordingly, we have jurisdiction to review the district court’s rulings
    on the plaintiffs’ declaratory-judgment claims.
    III.
    We review the defendants’ motions for judgment on the pleadings de
    novo. Edionwe v. Bailey, 
    860 F.3d 287
    , 291 (5th Cir. 2017). The standard for
    8
    Case: 18-10561      Document: 00514928890      Page: 9    Date Filed: 04/24/2019
    No. 18-10561
    Rule 12(c) motions for judgment on the pleadings is identical to the standard
    for Rule 12(b)(6) motions to dismiss for failure to state a claim. See Doe v.
    MySpace, Inc., 
    528 F.3d 413
    , 418 (5th Cir. 2008). To survive a motion for a
    judgment on the pleadings, “a complaint must contain sufficient factual
    matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
    Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
    
    550 U.S. 544
    , 570 (2007)). This involves a two-step inquiry. See 
    Robertson, 751 F.3d at 388
    , 390. First, we must identify the complaint’s well-pleaded factual
    content. See 
    id. at 388.
    In doing so, we set aside “any unsupported legal
    conclusions,” the truth of which “we cannot assume.” Id.; see also 
    Iqbal, 556 U.S. at 678-79
    . Second, we ask whether the remaining allegations “are
    sufficient to nudge the [plaintiff’s] claim across the ‘plausibility’ threshold.”
    
    Robertson, 751 F.3d at 390
    (quoting 
    Iqbal, 556 U.S. at 678
    ). In other words, we
    ask whether we can reasonably infer from the complaint’s well-pleaded factual
    content “more than the mere possibility of misconduct.” 
    Iqbal, 556 U.S. at 679
    .
    This is “a context-specific task that requires the reviewing court to draw on its
    judicial experience and common sense.” 
    Id. Section 1983
    provides a cause of action to an individual harmed by a
    state official’s violation of federal law. A state official sued under § 1983 is
    entitled to qualified immunity from damages, which protects the official from
    liability for any act that was not objectively unreasonable at the time of the
    act. See Lincoln v. Turner, 
    874 F.3d 833
    , 847 (5th Cir. 2017). “The basic steps
    of our qualified-immunity inquiry are well-known: a plaintiff seeking to defeat
    qualified immunity must show: ‘(1) that the official violated a statutory or
    constitutional right, and (2) that the right was “clearly established” at the time
    of the challenged conduct.’” 
    Id. at 847-48
    (quoting 
    Morgan, 659 F.3d at 371
    ).
    When confronted with a qualified-immunity defense at the pleadings stage, the
    plaintiff must plead “facts which, if proved, would defeat [the] claim of
    9
    Case: 18-10561    Document: 00514928890       Page: 10   Date Filed: 04/24/2019
    No. 18-10561
    immunity.” Westfall v. Luna, 
    903 F.3d 534
    , 542 (5th Cir. 2018) (quoting Brown
    v. Glossip, 
    878 F.2d 871
    , 874 (5th Cir. 1989)).
    A.
    We first consider whether the plaintiffs allege sufficient facts to
    overcome Hoeppner’s qualified-immunity defense to their excessive-force
    claim. The parties appear to agree that that Hoeppner did not violate Waller’s
    rights if Waller was holding the gun at the time he was shot but did violate
    Waller’s clearly established rights if Waller was not holding the gun. Neither
    party makes an argument under the second prong of the qualified-immunity
    test. Thus, only the first prong is at issue here, and the sole question is whether
    the plaintiffs’ pleadings plausibly allege that Waller was unarmed when
    Hoeppner shot him.
    We conclude the plaintiffs’ claim is plausible based on the specific and
    detailed factual allegations they advance in support of their theory of events.
    Most notably, the plaintiffs’ allegations about Waller’s left-hand wounds and
    blood-spatter patterns support the reasonable inference that Waller was
    unarmed when he was shot. The path of the bullet through Waller’s fingers
    appears to suggest his hand was not clenched, as it would have been if he had
    been holding a gun. Further, if Waller was holding a gun when the bullet
    struck his left hand, it seems unlikely the bullet would have hit three of his
    fingers without at all damaging the gun. Moreover, it is not clear how
    unsmeared blood splatter could have ended up on Waller’s right palm if Waller
    was holding a gun in his right hand.
    Hoeppner raises two specific challenges to the sufficiency of these
    allegations. First, he insists that the plaintiffs pleaded themselves out of court
    by attaching the autopsy report to their pleadings. On the face of their
    pleadings, the plaintiffs allege that the autopsy report shows Waller could not
    have been holding a gun when he was shot. But Hoeppner observes that the
    10
    Case: 18-10561     Document: 00514928890      Page: 11    Date Filed: 04/24/2019
    No. 18-10561
    autopsy report does not opine on whether Waller could have been holding a
    gun when he was shot. Therefore, Hoeppner says, the autopsy report conflicts
    with the plaintiffs’ pleadings and takes precedence over the pleadings. Cf. Smit
    v. SXSW Holdings, Inc., 
    903 F.3d 522
    , 528 (5th Cir. 2018) (“[W]hen an
    ‘allegation is contradicted by the contents of an exhibit attached to the
    pleading, then indeed the exhibit and not the allegation controls.’” (quoting
    United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 
    355 F.3d 370
    , 377 (5th
    Cir. 2004))).
    We disagree. Hoeppner misunderstands the plaintiffs’ reliance on the
    autopsy report. The plaintiffs do not allege that the autopsy report itself
    concluded that Waller could not have been holding a gun at the time he was
    shot. Rather, they allege that such an inference can be drawn from the
    information contained within the autopsy report—specifically, the descriptions
    of Waller’s left-hand wounds. The contents of the autopsy report are consistent
    with the plaintiffs’ allegations, so at this stage of the litigation, we accept those
    allegations as true.
    Second, Hoeppner argues that these allegations raise only the possibility
    that he was not justified in shooting Waller. He asserts the plaintiffs’
    allegations about Waller’s left-hand wounds and right-hand unsmeared blood
    spatter only show Waller was unarmed when he was hit by one of Hoeppner’s
    five bullets. If Waller was armed when Hoeppner began to fire but dropped the
    gun sometime between being struck by Hoeppner’s first and final shots, then
    Hoeppner argues his use of force would have been reasonable. In making this
    argument, Hoeppner ignores his own statement to investigators—attached to
    and quoted verbatim in the plaintiffs’ pleadings—that he fired multiple shots
    11
    Case: 18-10561    Document: 00514928890       Page: 12   Date Filed: 04/24/2019
    No. 18-10561
    specifically because Waller did not drop the gun and thus remained a threat.
    He explained:
    I know there was one delayed shot [be]cause I put rounds on him
    at first I kind of noticed he kind of . . . I mean, like he was taking
    them like that and then he kind . . . kind of hunched over. And I’m
    not sure if he was falling over or if he was bending over [be]cause
    it hurt so . . . and I saw he still had the gun in his hand and so I
    . . . so I . . . I put . . . I put one more round on him and that’s when
    he fell forward.
    (ellipses in original) (emphasis added).
    Furthermore, even if Waller might have dropped the gun at some point
    during the shooting, this possibility, when weighed against the plaintiffs’
    detailed and specific factual pleadings, does not render implausible their
    allegation that Waller was unarmed when shot. Hoeppner demands too much
    at the pleadings stage; allegations need “not conclusively establish” the
    plaintiffs’ theory of the case. 
    Robertson, 751 F.3d at 389
    . For now, it suffices
    that the plaintiffs’ allegations “are not ‘naked assertions devoid of further
    factual enhancement.’” Id. (quoting 
    Iqbal, 556 U.S. at 678
    ).
    Hoeppner tries to compare the present facts to those in several police-
    shooting cases in which we held for the officers because the plaintiffs’ evidence
    only permitted us to speculate about whether the officers’ descriptions of
    events leading up to the shootings were untruthful. None of these cases is an
    apt comparison. In each case, the plaintiffs sought to rely on certain
    circumstantial evidence to create a genuine factual dispute on summary
    judgment, but the court in each instance found that the plaintiffs’ evidence was
    consistent with the officers’ versions of events. See Small ex rel. R.G. v. City of
    Alexandria, 622 F. App’x 378, 382-83 (5th Cir. 2015) (unpublished) (per
    curiam) (affirming summary judgment for officer because “no record evidence
    call[ed] into question [the officer’s] testimony about [the decedent’s] behavior
    12
    Case: 18-10561     Document: 00514928890      Page: 13    Date Filed: 04/24/2019
    No. 18-10561
    immediately prior to the shooting”); Thomas v. Baldwin, 595 F. App’x 378, 382
    (5th Cir. 2014) (unpublished) (explaining that autopsy report suggesting
    decedent was shot in his side did not support plaintiffs’ “bare assertion that
    [the decedent] was fleeing at the time he was shot”); Manis v. Lawson, 
    585 F.3d 839
    , 844 (5th Cir. 2009) (reversing denial of qualified immunity on summary
    judgment because plaintiffs did “not dispute the only fact material to whether
    [the officer] was justified in using deadly force: that [the decedent] reached
    under the seat of his vehicle and then moved as if he had obtained the object
    he sought”); Ontiveros v. City of Rosenberg, 
    564 F.3d 379
    , 383 (5th Cir. 2009)
    (explaining that plaintiffs were “attempting to use . . . undisputed facts to
    imply a speculative scenario that ha[d] no factual support”). Here, by contrast,
    the hand wounds and blood splatter provide at least some support for the
    plaintiffs’ allegation that Waller was not holding a gun, which, if true,
    contradicts Hoeppner’s and Hanlon’s explanations for the shooting.
    In sum, the plaintiffs’ specific and detailed factual pleadings about the
    crime-scene evidence make plausible their allegation that Waller followed
    Hoeppner’s commands, put down his weapon, and was unarmed when
    Hoeppner shot him. If this allegation is true, then qualified immunity would
    not shield Hoeppner from the plaintiffs’ excessive-force claim. See, e.g., Bazan
    ex rel. Bazan v. Hidalgo County, 
    246 F.3d 481
    , 493 (5th Cir. 2001). Accordingly,
    we affirm the district court’s order denying Hoeppner’s motion for judgment on
    the pleadings on the plaintiffs’ excessive-force claim.
    B.
    We next consider whether the plaintiffs sufficiently allege that
    Hoeppner, Hanlon, and Hardin conspired to cover up the true circumstances
    of Waller’s death in violation of the plaintiffs’ clearly established right to access
    the courts. We have recognized a right of access to the courts, which is founded
    in the Article IV Privileges and Immunities Clause, the First Amendment
    13
    Case: 18-10561    Document: 00514928890      Page: 14    Date Filed: 04/24/2019
    No. 18-10561
    Petition Clause, and the Fifth and Fourteenth Amendment Due Process
    Clauses. See Ryland v. Shapiro, 
    708 F.2d 967
    , 971-73 (5th Cir. 1983). Denial-
    of-access claims take one of two forms: forward-looking claims alleging “that
    systemic official action frustrates a plaintiff or plaintiff class in preparing and
    filing suits at the present time,” and backward-looking claims alleging that an
    official action has “caused the loss or inadequate settlement of a meritorious
    case, the loss of an opportunity to sue, or the loss of an opportunity to seek
    some particular order of relief.” Christopher v. Harbury, 
    536 U.S. 403
    , 413-14
    (2002) (citations omitted). The plaintiffs alleged both forward- and backward-
    looking denial-of-access claims against each of the defendants, but only the
    backward-looking claims are at issue on this appeal.
    “To maintain a backward-looking claim, a plaintiff must identify (1) a
    nonfrivolous underlying claim; (2) an official act that frustrated the litigation
    of that claim; and (3) a remedy that is not otherwise available in another suit
    that may yet be brought.” United States v. McRae, 
    702 F.3d 806
    , 830-31 (5th
    Cir. 2012). From our conclusion above that the plaintiffs state a claim against
    Hoeppner for excessive force, it follows that the plaintiffs have satisfied the
    first of these elements. For present purposes, although disputed, we will
    assume the plaintiffs’ allegations satisfy the second element as well by alleging
    that the defendants conspired to sabotage the crime scene and lie to
    investigators to cover up the fact that Waller was unarmed when Hoeppner
    shot him. Nevertheless, the plaintiffs’ claims fail on the third element: they
    have not explained what relief the defendants’ alleged misdeeds have cost
    them. The plaintiffs premise their backward-looking denial-of-access claims on
    the theory that the defendants’ alleged coverup frustrated their excessive-force
    claim against Hoeppner. Yet the plaintiffs are actively—and, so far,
    successfully—litigating that claim. They filed hundreds of pages of pleadings
    in the district court supported by dozens of exhibits containing detailed
    14
    Case: 18-10561    Document: 00514928890      Page: 15   Date Filed: 04/24/2019
    No. 18-10561
    forensic evidence in support of their claim. They survived Hoeppner’s
    pleadings-stage assertion of qualified immunity first in the district court and
    now on appeal. In short, there is no reason to believe the remedy the plaintiffs
    seek “is not otherwise available” in their active lawsuit against Hoeppner. 
    Id. at 831.
          In reaching the contrary conclusion, the district court explained that the
    plaintiffs’ “ability to prove their [excessive-force claim] may have been
    permanently compromised.” That might turn out to be the case, but it is too
    early to say. See 
    Christopher, 536 U.S. at 414
    (“These cases do not look forward
    to a class of future litigation, but backward to a time when specific litigation
    ended poorly, or could not have commenced, or could have produced a remedy
    subsequently unobtainable.” (footnotes omitted)). Unless and until the
    plaintiffs’ claim against Hoeppner suffers some concrete setback traceable to
    the defendants’ alleged coverup, their allegation that the defendants impaired
    their effort to bring that claim is no more than speculation about an event that
    may or may not come to pass. See 
    id. at 415
    (“There is, after all, no point in
    spending time and money to establish the facts constituting denial of access
    when a plaintiff would end up just as well off after litigating a simpler case
    without the denial-of-access element.”).
    The plaintiffs argue that their delay in bringing this lawsuit can, on its
    own, constitute the prejudice necessary to state their denial-of-access claims.
    We disagree. True, we have suggested in dicta that “[c]onduct by state officers
    which results in delay in the prosecution of an action in state court may cause
    such prejudice.” 
    Ryland, 708 F.2d at 974
    . But as we later clarified:
    Ryland stands for the proposition that if state officials wrongfully
    and intentionally conceal information crucial to a person’s ability
    to obtain redress through the courts, and do so for the purpose of
    frustrating that right, and that concealment and the delay
    engendered by it substantially reduce the likelihood of one’s
    15
    Case: 18-10561    Document: 00514928890       Page: 16   Date Filed: 04/24/2019
    No. 18-10561
    obtaining the relief to which one is otherwise entitled, they may
    have committed a constitutional violation.
    Crowder v. Sinyard, 
    884 F.2d 804
    , 812 (5th Cir. 1989) (emphasis added),
    abrogated on other grounds by Horton v. California, 
    496 U.S. 128
    (1990). Thus,
    showing delay alone is not enough; the plaintiffs must likewise show the delay
    caused some further harm to their cause of action. And here the plaintiffs run
    into a familiar problem—any harm caused by the delay in filing their
    excessive-force claim has yet to manifest.
    Therefore, the plaintiffs are left with pleadings that do not adequately
    allege a necessary element of their backward-looking denial-of-access claims.
    But the possibility remains that they will be able to state such claims in the
    future if their excessive-force claim goes south in later stages of this litigation.
    Faced with similar facts, the Ninth Circuit has repeatedly ordered backward-
    looking denial-of-access claims dismissed without prejudice as unripe. See
    Delew v. Wagner, 
    143 F.3d 1219
    , 1222-23 (9th Cir. 1998) (“To prevail on their
    claim, the Delews must demonstrate that the defendants’ cover-up violated
    their right of access to the courts by rendering ‘any available state court
    remedy ineffective.’ However, because the Delews’ wrongful death action
    remains pending in state court, it is impossible to determine whether this has
    in fact occurred.” (citation omitted) (quoting Swekel v. City of River Rouge, 
    119 F.3d 1259
    , 1264 (6th Cir. 1997))); Karim-Panahi v. L.A. Police Dep’t, 
    839 F.2d 621
    , 625 (9th Cir. 1988) (“Because the ultimate resolution of the present suit
    remains in doubt, Karim-Panahi’s cover-up claim is not ripe for judicial
    consideration.”); cf. Lynch v. Barrett, 
    703 F.3d 1153
    , 1157 (10th Cir. 2013)
    (concluding denial-of-access claim ripened once plaintiff lost underlying
    lawsuit). We agree this is the proper resolution. See Choice Inc. of Tex. v.
    Greenstein, 
    691 F.3d 710
    , 715 (5th Cir 2012) (“[A] case is not ripe if further
    factual development is required.” (quoting New Orleans Pub. Serv., Inc. v.
    16
    Case: 18-10561        Document: 00514928890          Page: 17     Date Filed: 04/24/2019
    No. 18-10561
    Council, 
    833 F.2d 583
    , 587 (5th Cir. 1987))). Accordingly, we reverse the
    district court’s order declining to dismiss the plaintiffs’ denial-of-access claims
    and remand with instruction to dismiss those claims without prejudice. 5
    IV.
    Lastly, we conclude the plaintiffs do not have standing to seek
    declaratory relief for violations of Waller’s rights under the Texas Constitution.
    “‘In a case of actual controversy within its jurisdiction,’ the Declaratory
    Judgment Act allows a federal court to ‘declare the rights and other legal
    relations of any interested party seeking such declaration.’” Hosein v.
    Gonzales, 
    452 F.3d 401
    , 403 (5th Cir. 2006) (quoting 28 U.S.C. § 2201). But the
    Declaratory Judgment Act does not vest the federal courts with jurisdiction
    broader than Article III’s “case or controversy” limitation. 
    Id. “In order
    to
    demonstrate that a case or controversy exists to meet the Article III standing
    requirement when a plaintiff is seeking injunctive or declaratory relief, a
    plaintiff must allege facts from which it appears there is a substantial
    likelihood that he will suffer injury in the future.” Bauer v. Texas, 
    341 F.3d 352
    , 358 (5th Cir. 2003). “To obtain [declaratory] relief for past wrongs, a
    plaintiff must demonstrate either continuing harm or a real and immediate
    threat of repeated injury in the future.” 
    Id. The plaintiffs
    here allege only past injury to Waller. Faced with similar
    circumstances, the Supreme Court ruled that a plaintiff had no standing to
    seek declaratory relief finding his son was fatally shot by police in violation of
    the Fourth Amendment. See Ashcroft v. Mattis, 
    431 U.S. 171
    , 172 (1977) (per
    curiam). Accordingly, we reverse the portion of the district court’s order
    5 The parties do not address this issue in terms of ripeness. But because ripeness
    implicates the district court’s subject-matter jurisdiction, we raise it sua sponte. See Elam v.
    Kan. City S. Ry. Co., 
    635 F.3d 796
    , 802 (5th Cir. 2011); Lopez v. City of Houston, 
    617 F.3d 336
    , 341 (5th Cir. 2010).
    17
    Case: 18-10561    Document: 00514928890     Page: 18   Date Filed: 04/24/2019
    No. 18-10561
    declining to dismiss the plaintiffs’ claims for declaratory relief and remand
    with instruction to dismiss those claims without prejudice.
    V.
    For the foregoing reasons, we AFFIRM the portion of the district court’s
    order denying Hoeppner’s qualified-immunity defense against the plaintiffs’
    excessive-force claim, but we otherwise REVERSE and REMAND with
    instructions to dismiss the plaintiffs’ denial-of-access and declaratory-
    judgment claims without prejudice.
    18
    

Document Info

Docket Number: 18-10561

Citation Numbers: 922 F.3d 590

Filed Date: 4/24/2019

Precedential Status: Precedential

Modified Date: 1/12/2023

Authorities (22)

Juarez v. Aguilar , 666 F.3d 325 ( 2011 )

Doe v. MySpace, Inc. , 528 F.3d 413 ( 2008 )

Ruth Bauer v. The State of Texas, the Presiding Judge of ... , 341 F.3d 352 ( 2003 )

Hosein v. Gonzales , 452 F.3d 401 ( 2006 )

Ontiveros v. City of Rosenberg, Tex. , 564 F.3d 379 ( 2009 )

Hardy W. Ryland and Alma Odessa Ryland v. Alfred B. Shapiro,... , 708 F.2d 967 ( 1983 )

United States Ex Rel. Riley v. St. Luke's Episcopal Hospital , 355 F.3d 370 ( 2004 )

Bazan Ex Rel. Bazan v. Hidalgo County , 246 F.3d 481 ( 2001 )

nancy-crowder-individually-and-as-independent-of-the-estate-of-james , 884 F.2d 804 ( 1989 )

Lopez v. City of Houston , 617 F.3d 336 ( 2010 )

Manis v. Lawson , 585 F.3d 839 ( 2009 )

Elam v. Kansas City Southern Railway Co. , 635 F.3d 796 ( 2011 )

Jay T. Brown v. Deputy Constable John Glossip , 878 F.2d 871 ( 1989 )

parviz-karim-panahi-v-los-angeles-police-department-daryl-e-gates-city-of , 839 F.2d 621 ( 1988 )

Ashcroft v. Mattis , 97 S. Ct. 1739 ( 1977 )

Christopher v. Harbury , 122 S. Ct. 2179 ( 2002 )

98-cal-daily-op-serv-3543-98-daily-journal-dar-4869-michael-c-delew , 143 F.3d 1219 ( 1998 )

Cohen v. Beneficial Industrial Loan Corp. , 69 S. Ct. 1221 ( 1949 )

Horton v. California , 110 S. Ct. 2301 ( 1990 )

Bell Atlantic Corp. v. Twombly , 127 S. Ct. 1955 ( 2007 )

View All Authorities »